United States District Court, N.D. California, San Jose Division
ORDER (1) GRANTING WITH LEAVE TO AMEND IN PART AND
WITHOUT LEAVE TO AMEND IN PART DEFENDANT GOOGLE'S MOTION
TO DISMISS THE FAC; (2) DENYING WITHOUT PREJUDICE VACO
DEFENDANTS' MOTION TO STAY PENDING ADJUDICATION OF
TRUJILLO ACTION [RE: ECF 21, 23]
LABSON FREEMAN, United States District Judge.
no secret that technology companies employing anyone from
chefs to engineers to salespersons in order to keep up with
the fast pace of Silicon Valley outsource some of their
staffing decisions. In this case, Plaintiff Christiana Bush
(“Bush”) alleges that Defendants Google LLC
(“Google”) and staffing company Vaco Technology
Services, LLC, Vaco San Francisco, LLC, Vaco LaJolla, LLC,
Vaco Orange County, LLC, and Vaco Los Angeles, LLC
(collectively, the “Vaco Defendants” or
“Vaco”) (together with Google,
“Defendants”) misclassified her as an exempt
employee when she worked as a Google Expedition Team Lead,
when in fact she was non-exempt. See First Amended
Complaint (“FAC”), ECF 20. Bush seeks to
represent several proposed classes and subclasses
encompassing all persons employed by Google through any
staffing agency, including Vaco, or any other third parties
in California since May 2011. See generally FAC.
moves to dismiss the FAC, arguing that Bush's factually
deficient individual allegations and overbroad claims on
behalf of a highly disparate class amount to pleading abuse
and fail to satisfy the requirements of Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft
v. Iqbal, 556 U.S. 662 (2000). See ECF 21
(“MTD”). Google also specifically moves to
dismiss Bush's ninth cause of action for civil penalties
pursuant to the California Labor Code Private Attorneys
General Act of 2004 (“PAGA”), Cal. Lab. Code
§ 2698 et seq., as time-barred. MTD at 12.
Meanwhile, the Vaco Defendants move to stay this action
pending adjudication of a previously filed class action
pending in California Superior Court, County of Santa Clara,
Daniel Trujillo, et al., v. Vaco Technology Services,
LLC, et al., Case No. 1-15-CV-280846
(“Trujillo Action”). See Motion
to Stay, ECF 23.
Court held a hearing on Google's motion to dismiss the
FAC and the Vaco Defendants' motion to stay on February
22, 2018. For the reasons that follow, as well as those
stated on the record at the hearing, Google's motion to
dismiss the FAC is GRANTED WITH LEAVE TO AMEND with the
exception of Bush's PAGA claim, which is time-barred and
thus DISMISSED WITHOUT LEAVE TO AMEND. The Vaco
Defendants' motion to stay this entire action, or the
claims of the Vaco employees, pending adjudication of
Trujillo is DENIED WITHOUT PREJUDICE.
Bush's Role at Google
alleges that on or about May 2014, Defendants hired her as a
non-exempt employee for a position primarily involving data
entry with a job title of Order Audit Operation Specialist.
FAC ¶ 25. In August 2014, Bush was promoted to
another non-exempt, hourly position at Google with the title
Content Bug Technician, a position primarily involving
software quality assurance. Id. ¶ 26. Bush was
transferred to the Google Expedition Team in or around
September 2015, and was given the title of Google Expedition
Team Lead. Id. ¶ 27. At that point, Bush
alleges that Defendants classified her as an outside
salesperson even though she did not spend more than half of
her working hours engaged in exempt sales activity away from
the employer's place of business. Id.
her first week as a Google Expedition Team Lead, Bush alleges
that she was required to report to Google's headquarters
to set up the necessary equipment, which required her to
travel to arrive as early as 8:00 A.M., and to work as late
as 9:00 P.M. from Monday through Friday. Id. ¶
28. Once the equipment-in this case, new cellphones-was set
up and repackaged, Bush and the putative class drove their
vehicles to various schools in Northern California to deliver
cellphones to the end user. Id. ¶ 29.
Bush's responsibilities of bringing cellphones to schools
and training teachers on how to use them required her to
spend several hours at the beginning and end of the day
driving to and from the schools and giving orientations.
Id. Bush alleges that she demonstrated and provided
a virtual reality experience to students in schools but was
not engaged in any kind of exempt sales activity.
Id. ¶ 30.
role as Expedition Team Lead at Google, Bush alleges that she
regularly worked more than ten hours each workday and over
sixty hours each workweek. Id. ¶ 31. Because
she was classified as exempt, she was paid a fixed salary
regardless of the hours she worked, was not provided with
designated meal or rest periods, was not paid overtime or
double time wages, and was not reimbursed for expenses such
as driving her personal vehicle to various job sites and
charging approximately seventy-five cellphones at home for
use by staff. Id. In sum, Bush alleges that she and
others similarly situated were harmed as a result of
Defendants' “policy or practice” of violating
various Labor Code provisions and the FLSA, including
misclassification, which deprived plaintiffs of the
protections they were entitled to under these labor laws.
The Trujillo Action
19, 2015, counsel for Bush filed a nearly identical lawsuit
against Google and certain Vaco entities in the
Trujillo Action in Santa Clara Superior Court.
See Declaration of Daniel B. Chammas (“Chammas
Decl.”), ECF 23-1. The named plaintiff in that putative
wage-and-hour class action, Daniel Trujillo, sought unpaid
wages and compensation for allegedly missed meal and rest
breaks. Id. ¶ 2. The putative class was limited
to Vaco California non-exempt employees, and sought to hold
Google liable only to the extent that Vaco assigned employees
to Google. Id. Trujillo filed a First Amended
Complaint on June 18, 2015, adding a claim under PAGA.
Id. ¶ 3.
himself was incarcerated for an unrelated criminal matter,
and his counsel (the same attorneys representing Bush in the
instant action) sought replacement representatives for the
Trujillo Action. Id. ¶ 4. Thereafter,
counsel filed a Second Amended Complaint to replace Trujillo
with new representative plaintiffs Megan Carroll
(“Carroll”) and Sierra Robinson
(“Robinson”). Id. Carroll and Robinson
filed a Third Amended Complaint on September 19, 2016.
Id. ¶ 5. After Google and the Vaco Defendants
demurred and moved to strike the class allegations, Carroll
and Robinson filed the operative Fourth Amended Complaint in
the Trujillo Action on November 7, 2016.
Id. ¶ 6; see also Chammas Decl. Exh.
parties engaged in private mediation in the Trujillo
Action, which resulted in settlement of Carroll's claims
on an individual basis and a release of her PAGA and class
claims against all Defendants. Chammas Decl. ¶ 8.
Because the only remaining representative in the
Trujillo Action, Robinson, never worked for Google,
the settlement agreement dismissed Google as a defendant.
Id. Robinson did not settle her claims against the
Vaco Defendants, and continues to pursue her claims in the
Trujillo Action. Id. ¶ 9. However,
putative class counsel represented at the hearing that they
have experienced a breakdown in communications with Robinson
and the future of the Trujillo action is uncertain.
The Bush Action
August 24, 2017, represented by the same counsel as
plaintiffs in the Trujillo Action, Bush initiated
this lawsuit on behalf of herself and others similarly
situated against Google and the Vaco Defendants in the
Superior Court of California, County of Santa Clara.
See Declaration of Alexandria M. Witte (“Witte
Decl.”) Exh. A (“Compl.”), ECF 1-1. The
Vaco Defendants filed an Answer to the original Complaint on
September 26, 2017. See Witte Decl. Exh. J. On
September 27, 2017, the Vaco Defendants, joined by Google,
removed the Bush action to this Court pursuant to
federal question jurisdiction because Bush's eighth cause
of action asserts a violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
for Defendants' alleged failure to pay wages for all
hours worked. See ECF 1. Thus, unlike the
Trujillo Action which remains in state court and
seeks relief exclusively under state law, the Bush
Action arises under federal law.
Vaco Defendants then filed a motion to stay the Bush
action pending adjudication of the Trujillo action,
and Google filed a motion to dismiss the original complaint.
See ECF 8, 16. On October 31, 2017, Bush filed a
First Amended Complaint as of right against Defendants, which
became the operative complaint and rendered the pending
motions moot. See generally FAC. Bush brings nine
causes of action against Defendants, six of which are for
violations of the California Labor Code including (1) failure
to provide meal periods; (2) failure to provide rest periods;
(3) failure to pay hourly and overtime wages; (4) failure to
indemnify; (5) failure to provide accurate written wage
statements; and (6) failure to timely pay all final wages.
Bush also alleges (7) unfair competition in violation of
California Business & Professions Code §§ 17200
et seq.; (8) failure to pay employees for all hours
worked in violation of the FLSA; and (9) civil penalties
under PAGA. See FAC ¶¶ 47-155. Google
filed a motion to dismiss all causes of action in the FAC, or
in the alternative, to strike class allegations, and the Vaco
Defendants filed a renewed motion to stay based on the FAC.
See ECF 21, 23. The Court held a hearing on both
motions as well as an initial Case Management Conference on
February 22, 2018.
hearing, the Court indicated that it would grant Google's
motion to dismiss and require Plaintiff to amend
significantly in order to proceed with this putative class
action, including narrowing the class allegations
substantially. The Court agreed with Google that as currently
pled, the allegations in the FAC beg discovery abuse.
Accordingly, the Court STAYED discovery in its entirety until
Defendants are ordered to answer the complaint, or such
earlier time as ordered by the Court. See ECF 38.
The Court also DENIED WITHOUT PREJDUICE the Vaco
Defendants' motion to stay this case pending the outcome
of the Trujillo Action. The Court's reasoning on
Google's motion to dismiss and the Vaco Defendants'
motion to stay is set forth below.
REQUEST FOR JUDICIAL NOTICE
a district court's inquiry on a Rule 12(b)(6) motion to
dismiss is limited to the pleadings. “A court may,
however, consider certain materials-documents attached to the
complaint, documents incorporated by reference in the
complaint, or matters of judicial notice- without converting
the motion to dismiss into a motion for summary
judgment.” U.S. v. Ritchie, 342 F.3d 903, 908
(9th Cir. 2003). Courts may take judicial notice of facts
that are “not subject to reasonable dispute.”
Fed.R.Evid. 201(b). Indisputable facts are those that are
“generally known” or that “can be
accurately and readily determined from sources whose accuracy
cannot be reasonably questioned.” Id.
requests this Court to take judicial notice of two records:
(1) Bush's Amended and Supplemental PAGA Notice, dated
July 19, 2017, sent by Bush to the California Labor and
Workforce Development Agency (“LWDA”) and Google
pursuant to the California Labor Code Private Attorneys
General Act of 2004 (“PAGA”), Cal. Lab. Code
§ 2698 et seq. See Google's Request for
Judicial Notice (“RJN”), Exh. A (“PAGA
Notice”), ECF 22; and (2) a joint stipulation and
signed order filed in the Trujillo Action entered
October 17, 2017, dismissing Plaintiff Carroll's claims
and Defendant Google from the action pursuant to settlement.
See RJN Exh. B.
did not file an opposition to Google's request for
judicial notice, and the arguments in her opposition to
Google's motion to dismiss her PAGA claim also rely on
these documents. The Court finds that both Exhibits A and B
are proper subjects of judicial notice. The PAGA Notice is
incorporated by reference into the FAC. See FAC
¶ 153 (“Plaintiff has complied with the procedures
for bringing suit specified in Labor Code §
2699.3.”). The “incorporation by reference”
doctrine permits the Court to take into account documents
“whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically
attached to the [plaintiff's] pleading.”
Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)
(internal citations omitted). Courts routinely take judicial
notice of PAGA notices at the motion to dismiss stage.
See, e.g., Gunn v. Family Dollar Stores,
Inc., No. 3:14-CV-1916-GPC-BGS, 2016 WL 7030363, at *2
(S.D. Cal. Dec. 2, 2016) (granting defendant's request
for judicial notice “[b]ecause Plaintiff's PAGA
claim depends upon the sufficiency of the letter's
content and because Plaintiff does not dispute the
authenticity of the document.”)
respect to the October 17, 2017 Order in the
Trujillo Action dismissing Carroll's claims,
including her PAGA claim, the Court “may take judicial
notice of undisputed matters of public record, including
documents on file in federal or state courts.”
Harris v. County of Orange, 682 F.3d 1126, 1132 (9th
Cir. 2012). The Trujillo Order attached as Exhibit B
is a document filed in Santa Clara Superior Court, and is
properly subject to judicial notice. For these reasons, the
Court GRANTS Google's request for judicial notice of
Exhibits A and B.
MOTION TO DISMISS
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted ‘tests the legal sufficiency of a
claim.'” Conservation Force v. Salazar,
646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). When
determining whether a claim has been stated, the Court
accepts as true all well-pled factual allegations and
construes them in the light most favorable to the plaintiff.
Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681,
690 (9th Cir. 2011). However, the Court need not
“accept as true allegations that contradict matters
properly subject to judicial notice” or
“allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.” In
re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th
Cir. 2008) (internal quotation marks and citations omitted).
While a complaint need not contain detailed factual
allegations, it “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when it “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
motion to dismiss, the Court's review is limited to the
face of the complaint and matters judicially noticeable.
MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th
Cir. 1986); N. Star Int'l v. Ariz. Corp.
Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). However,
under the “incorporation by reference” doctrine,
the Court also may consider documents which are referenced
extensively in the complaint and which are accepted by all
parties as authentic. In re Silicon Graphics, Inc. Sec.
Litig., 183 F.3d 970, 986 (9th Cir. 1999), abrogated
on other grounds by S. Ferry LP, No. 2 v. Killinger, 542
F.3d 776, 784 (9th Cir. 2008).
deciding whether to grant leave to amend, the Court must
consider the factors set forth by the Supreme Court in
Foman v. Davis, 371 U.S. 178 (1962), and discussed
at length by the Ninth Circuit in Eminence Capital, LLC
v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A
district court ordinarily must grant leave to amend unless
one or more of the Foman factors is present: (1)
undue delay, (2) bad faith or dilatory motive, (3) repeated
failure to cure deficiencies by amendment, (4) undue
prejudice to the opposing party, and (5) futility of
amendment. Eminence Capital, 316 F.3d at 1052.
“[I]t is the consideration of prejudice to the opposing
party that carries the greatest weight.” Id.
However a strong showing with respect to one of the other
factors may warrant denial of leave to amend. Id.
Failure to State a Claim
argues that all of the claims in Bush's FAC are fatally
deficient under Twombly and Iqbal. MTD at
The Court will require significant amendment before Bush is
permitted to move forward with her own claims against Google,
as well as her claims on behalf of a class of Google
employees. The Court addresses each of the nine causes of
action in the FAC as follows.
Failure to Provide Meal and Rest Periods (Claims 1 and
respect to her own experience as a Google Expedition Team
Lead, Bush fails to allege facts to support the wide swath of
Labor Code violations that she asserts against Defendants. In
the first two causes of action, the FAC contains only
conclusory allegations that Bush was entitled to-and that
Defendants failed to provide-required meal and rest periods.
See FAC ¶¶ 36-39. Not only does Bush fail
to differentiate between Google and the Vaco Defendants
anywhere in her pleading, she also does not allege any facts
to support her claims that Google violated the California
Labor Code with respect to her or any other individual
regardless of that individual's employer, classification
as exempt or non-exempt, duties, position, or type of
engagement. See MTD at 5-6.
Labor Code § 226.7(b) provides that “[a]n employer
shall not require an employee to work during a meal or rest
or recovery period mandated pursuant to an applicable
statute, or applicable regulation, standard, or order of the
Industrial Welfare Commission, the Occupational Safety and
Health Standards Board, or the Division of Occupational
Safety and Health.” Cal. Lab. Code § 226.7(b).
Further, § 226.7(c) provides that “[i]f an
employer fails to provide an employee a meal or rest or
recovery period in accordance with a state law ... the
employer shall pay the employee one additional hour of pay at
the employee's regular rate of compensation for each
workday that the meal or rest or recovery period is not
provided.” Cal. Lab. Code § 226.7(c). Under
California Labor Code § 512(a), “[a]n employer may
not employ an employee for a work period of more than five
hours per day without providing the employee with a meal
period of not less than 30 minutes…” Cal. Lab.
Code § 512(a).
only factual allegation in the FAC about Bush's own meal
and rest periods is that when she was a Google Expedition
Team Lead, Bush was “not provided with any designated
meal and/or rest periods as she regularly worked through her
meal and/or rest periods.” FAC ¶ 31. This
allegation is partly a conclusion (that Defendants failed to
provide designated meal and/or rest periods) and otherwise
insufficiently pled because under the applicable law it is
irrelevant whether Bush worked through meal or rest periods
if they were made available to her. Rather, “[a]n
employer's duty with respect to meal breaks under both
section 512, subdivision (a) and Wage Order No. 5 is an
obligation to provide a meal period to its employees. The
employer satisfies this obligation if it relieves its
employees of all duty, relinquishes control over their
activities and permits them a reasonable opportunity to take
an uninterrupted 30-minute break, and does not impede or
discourage them from doing so.” Brinker Rest. Corp.
v. Superior Court, 53 Cal.4th 1004, 1040 (2012).
Moreover, “the employer is not obligated to police meal
breaks and ensure no work thereafter is performed.”
Id. The Court cannot infer that Bush has stated a
claim against Google merely because she alleges that she
regularly worked through her meal and/or rest periods. More
facts are needed to raise Bush's claims above a
speculative level. See Twombly, 550 U.S. at 570
(“Because the plaintiffs here have not nudged their
claims across the line from conceivable to plausible, their
complaint must be dismissed.”)
also key to Bush's claims that she plausibly alleges
which company (or companies) employed her. Yet
Bush's factual allegations are fatally vague on this
point. She asserts only that she was “initially hired
by Defendants” as a non-exempt employee but eventually
“promoted” and “transferred” to other
positions at Google. See FAC ¶¶ 25-27. She
provides no factual support that would enable the Court to
presume that she had an employment relationship with Google
rather than Vaco. This is in part because Bush never
differentiates between any of the Defendants. In fact, after
she defines the Vaco Defendants in the beginning of the FAC,
the remainder of the pleading fails to distinguish between
the conduct by the Vaco Defendants (including between one
another) and Google's conduct. The Court cannot draw an
inference that “Defendants” employed Bush or
misclassified her, and therefore cannot infer that Google
employed any of the putative class members. See Lopez v.
Wendy's Int'l, Inc., No. CV 11-00275 MMM JCX,
2011 WL 6967932, at *2 (C.D. Cal. Sept. 19, 2011) (A
plaintiff asserting claims on behalf of a class “does
not lower the pleading requirements for the named
plaintiff's claims, or in any way blunt the impact of the
Supreme Court's holdings in Twombly and
class allegations in the FAC are even more troubling than
Bush's individual claims. Bush seeks to represent two
proposed classes, a “Google Staffing Class” and a
“Google Expedition Class, ” each of which is
composed of several sub-classes. See FAC ¶ 17.
The Google Staffing Class consists of “[a]ll persons
employed by Google through any staffing agencies and/or any
other third parties who worked in hourly or non-exempt
positions in California during the Relevant Time
Period.” Id. The Google Expedition Class
allegedly includes “[a]ll persons employed directly by
Google and/or ...