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Suarez v. Bank of America N.A.

United States District Court, N.D. California

May 30, 2018

ARIANNA SUAREZ, Plaintiff,
v.
BANK OF AMERICA CORPORATION, Defendant.

          ORDER RE: MOTION TO DISMISS RE: DKT. NO. 9

          MARIA-ELENA JAMES, United States Magistrate Judge

         INTRODUCTION

         Pending before the Court is Defendant Bank of America, N.A.‘s Motion to Dismiss or to Strike. Mot., Dkt. No. 9. Plaintiff Arianna Suarez filed an Opposition (Dkt. No. 10) and Bank of America filed a Reply (Dkt. No. 11). The Court previously found this matter suitable for disposition without oral argument. Dkt. No. 12. Having considered the parties‘ positions, the relevant legal authority, and the record in this case, the Court GRANTS Bank of America‘s Motion for the following reasons.

         BACKGROUND

         A. Factual Allegations

         Plaintiff began working for Bank of America as an Assistant Manager in 2003. Compl. ¶¶ 1, 13, Dkt. No. 1-2. Her duties included opening and closing the banking center, coaching associates, handling customer complaints, and managing vault reserves. Id. ¶ 1.

         Plaintiff‘s immediate supervisor consistently denied Plaintiff the opportunity to take her lunch and other rest breaks and reprimanded Plaintiff when she attempted to take a break or use the restroom. Id. ¶ 14. Plaintiff tried to indicate on her records that she had not been able to take a meal period for the day, but her supervisor prevented her from doing so. Id. Plaintiff was therefore never compensated in the form of a meal premium for missing her meal periods. Id.

         Plaintiff discovered she was pregnant in May 2017; in July 2017, she discovered she had developed gestational diabetes. Id. ¶ 16. This condition required Plaintiff to take breaks to check and regulate her blood glucose levels, which required the use of a glucose monitor and required her to eat a light snack or meal to control sugar spikes and drops. Id. Plaintiff gave Bank of America a doctor‘s note explaining Plaintiff needed to take meal breaks to eat and regulate her blood sugar levels. Id. ¶ 17. Bank of America disregarded the note and continued to deny Plaintiff her meal and rest periods. Id. ¶ 18. As a result, Plaintiff was often forced to interrupt business to check her blood glucose levels. Id. Plaintiff did so in places with little to no privacy, in view of co-workers and customers. Id.

         After reporting her pregnancy, Plaintiff was frequently and condescendingly asked inappropriate questions about her health and her ability to continue working. Id. ¶ 19. Plaintiff‘s supervisor asked questions about her future with the company and told Plaintiff, "'[T]his isn‘t the right banking center for you.‘" Id.

         Plaintiff was forced to work overtime on multiple occasions. Id. ¶ 20. Plaintiff was compensated for her overtime hours, but she had no choice as to whether or not she took the overtime. Id. Plaintiff complained about this policy because her son, who has a genetic illness, required regular doctor‘s appointments. Id. Plaintiff‘s requests for time off for these appointments were denied. Id.

         At one point, Plaintiff‘s son was rushed to the hospital; Plaintiff was barred from taking a personal or sick day to visit him. Id. When Plaintiff complained she had a right to visit her son and use her accrued paid time off ("PTO"), Plaintiff‘s supervisor became cross and told her she needed to stay to run the banking center. Id. Plaintiff called her supervisor‘s supervisor to complain, and Plaintiff was allowed to visit her son on that day. Id. ¶ 22. No. further corrective or disciplinary action was taken as to Plaintiff‘s direct supervisor‘s policy of preventing usage of PTO. Id. Upon Plaintiff‘s return to work, her supervisor reprimanded Plaintiff for complaining above the supervisor‘s rank. Id. Plaintiff was told to "'never go over her head again.‘" Id. ¶ 23.

         Plaintiff went on maternity leave in August 2017. Id. ¶ 24. During that time, she injured her back and transitioned to long-term disability leave, which would last until February 2018. Id.

         On September 29, 2017, Plaintiff received a termination letter dated two days earlier. Id. ¶ 25. On September 27, 2017, Plaintiff received her final pay deposit in the amount of $1, 700. Id. This did not reflect her unused sick leave, vacation time, and other PTO to which she was entitled. Id. As a result of her termination, Plaintiff does not have access to medical benefits for herself or her two children. Id.

         Bank of America‘s practice of not permitting Plaintiff to take meal and rest breaks were not limited to her; Plaintiff alleges she and others were not authorized or permitted to take meal and rest breaks as required by California law. Id. ¶ 28. In addition, even after Plaintiff and others were terminated or voluntarily resigned, Bank of America refused to pay wages owed and accrued PTO. Id. ¶¶ 29-30.

         B. Procedural History

         On January 25, 2018, Plaintiff filed this lawsuit in Alameda County Superior Court. See Compl.; Summons, Dkt. No. 1-1. Plaintiff seeks to represent a putative Hourly Employee Class defined as "[a]ll non-exempt employees who worked for Bank of America as Assistant Manager or similar job titles, in the State of California at any time on or after the date that is four years prior to when the Complaint was filed." Compl. ¶ 31. Plaintiff also seeks to represent a Terminated Subclass of "[a]ll persons who are eligible for membership in the Class but who are no longer employed by Defendant." Id.

         Plaintiff brings a total of twenty causes of action on behalf of the proposed class and as an individual. She asserts her first through eighth causes of action under the California Labor Code on behalf of the proposed class: (1) failure to compensate for all hours worked, (2) failure to pay minimum wage, (3) failure to provide meal and rest periods, (4) failure to provide adequate time off, (5) failure to pay PTO on termination, (6) failure to pay final wages on time, (7) failure to maintain accurate records, and (8) failure to furnish wage and hour statements. Compl. ¶¶ 34-109. Plaintiff‘s twentieth cause of action asserts on behalf of the proposed class a claim under California‘s Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq. Id. ¶¶ 242-52.

         Plaintiff asserts her ninth through eighteenth causes of action as an individual: (1) unlawful retaliation in violation of public policy; (2) wrongful termination in violation of public policy; (3) discrimination and harassment, Cal. Gov‘t Code § 12940 et seq.; (4) failure to prevent and investigate discrimination and harassment, Cal. Gov‘t Code § 12940 et seq.; (5) failure to provide reasonable accommodation, Cal. Gov‘t Code § 12940 et seq.; (6) failure to engage in interactive process, Cal. Gov‘t Code § 12940 et seq.; (7) violation of California Family Rights Act ("CFRA")/Family Medical Leave Act ("FMLA") rights; (8) intentional infliction of emotional distress; (9) negligent infliction of emotional distress; and (10) negligence, Cal. Civ. Code § 1714. Compl. ¶¶ 110-238.

         Plaintiff‘s nineteenth cause of action is for "injunctive relief." Id. ¶¶ 239-41. Based on the related allegations, it appears Plaintiff asserts this cause of action as an individual; it does not contain allegations pertaining to the putative class. See Id. ¶ 240 ("As a result of the unlawful and wrongful conduct alleged above, . . . Plaintiff has been and will continue to be irreparably harmed."); id. ¶ 241 ("Plaintiff has no adequate remedy at law for the injuries it has suffered, . . . and Plaintiff has a reasonable probability of success on the merits.").

         On February 23, 2018, Bank of America removed the action to this Court. Not. of Removal, Dkt. No. 1. It filed the instant Motion on March 16, 2018.

         LEGAL STANDARDS

         A. Rule 12(b)(6)

         Federal Rule of Civil Procedure 8(a) requires that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A complaint must therefore provide a defendant with "fair notice" of the claims against it and the grounds for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citation omitted).

         A court may dismiss a complaint under Rule 12(b)(6) when it does not contain enough facts to state a claim to relief that is plausible on its face. Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement, ‘ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff‘s obligation to provide the 'grounds‘ of his 'entitle[ment] to relief‘ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (internal citations and parentheticals omitted).

         In considering a motion to dismiss, a court must accept all of the plaintiff‘s allegations as true and construe them in the light most favorable to the plaintiff. Id. at 550; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007). In addition, courts may consider documents attached to the complaint. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted).

         If a Rule 12(b)(6) motion is granted, the "court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotations and citations omitted). However, the Court may deny leave to amend for a number of reasons, including "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

         B. Rule 12(f)

         Federal Rule of Civil Procedure 12(f) allows a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Immaterial matters are "those which ha[ve] no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994) (internal quotation marks omitted). Impertinent matters "do not pertain, and are not necessary, to the issues in question." Id. (internal quotation marks omitted).

         The purpose of a Rule 12(f) motion "is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial[.]" Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (internal quotation marks omitted). "Motions to strike are generally disfavored and 'should not be granted unless the matter to be stricken clearly could have no possible bearing on the subject of the litigation.‘" Luxul Tech. Inc. v. NectarLux, LLC, 2015 WL 4692571, at *3 (N.D. Cal. Aug. 6, 2015) (quoting Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D. Cal. 2004)). The decision to grant a motion to strike ultimately lies within the discretion of the trial court. Rees v. PNC Bank, N.A., 308 F.R.D. 266, 271-72 (N.D. Cal. 2015) (citing Whittlestone, 618 F.3d at 973); see Whittlestone, 618 F.3d at 973 ("We review the district court's decision to strike matter pursuant to Federal Rule of Civil Procedure 12(f) for abuse of discretion." (internal quotation marks omitted)).

         REQUEST FOR JUDICIAL NOTICE

         Federal Rule of Evidence 201(b) permits courts to "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." Courts "may take judicial notice of court filings and other matters of public record." Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).

         Bank of America requests the Court take judicial notice of two documents: (1) a May 5, 2017 order entered in Dawson v. Hitco Carbon Composites, Inc., No. 16-cv-7337-PSJ-FFM (C.D. Cal.); and (2) a statement of decision entered in a Santa Clara County Superior Court case, Driscoll v. Granite Rock Co., 1-08-cv-103426 (Sept. 20, 2011). RJN, Exs. A & B, Dkt. No. 9-1. Plaintiff does not oppose the Request. See Opp‘n. As these documents are judicially-noticeable public court filings, the Court GRANTS the Request.

         DISCUSSION

         A. First and Second Causes of Action

         Plaintiff asserts her first cause of action - failure to compensate for all hours worked - under California Labor Code sections 200-204, 218, 223, 225.5, 226, 500, 510, 558, 1194, 1194.2, 1197, 1197.1, and 1198. Compl. ¶¶ 34-45. She asserts her second cause of action - failure to pay minimum wage - under Labor Code sections 223 and 1194. Compl. ¶¶ 46-53.

         "[T]o survive a motion to dismiss, a plaintiff asserting a claim to overtime payments must allege that she worked more than forty hours in a given workweek without being compensated for the overtime hours worked during that workweek." Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 644-45 (9th Cir. 2014), as amended (Jan. 26, 2015). "Federal courts considering claims under the California Labor Code apply the standard set forth in Landers . . ., which involved claims under the Federal Labor Standards Act ('FLSA‘)." Mie Yang v. Francesca's Collections, Inc., 2018 WL 984637, at *8 (N.D. Cal. Feb. 20, 2018); see Tan v. GrubHub, Inc., 171 F.Supp.3d 998, 1006 (N.D. Cal. 2016) ("Although Landers discussed FLSA claims, its reasoning applies to California Labor Code claims as well."); Freeman v. Zillow, Inc., 2015 WL 5179511, at *3 (C.D. Cal. Mar. 19, 2015) ("[T]he reasoning in Landers also applies to Plaintiff‘s overtime claim asserted under the California Labor Code because both California Labor Code § 510(a) and 29 U.S.C. § 207 require Plaintiff to have worked overtime in a given workweek to state a claim against Defendant for failure to pay overtime wages.").

         The Complaint does not allege that Plaintiff or putative class members worked "in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek" to show they were entitled to overtime compensation. Cal. Lab. Code § 510(a). Plaintiff need not approximate the number of overtime hours she worked.[1] Landers, 771 F.3d at 645 (acknowledging "most (if not all) of the detailed information concerning a plaintiff-employee‘s compensation and schedule is in the control of the defendants"). But Plaintiff "should be able to allege facts demonstrating there was at least one workweek in which [she] worked in excess of forty hours and w[as] not paid overtime wages." Id. at 646. The Complaint lacks any such facts.

         Plaintiff also alleges she "and Class Members routinely performed work 'off-the-clock, ‘" but Bank of America "failed to track their hours worked and refused to compensate Plaintiff and Class Members for some and/or all of the wages (including overtime wages) earned[.]" Compl. ¶¶ 41-42. There are no facts describing what this off-the-clock work entailed. Cf. Boon v. Canon Bus. Sols., Inc., 592 F. App‘x 631, 632 (9th Cir. 2015) ("Boon identified tasks for which he was not paid and alleged that he regularly worked more than eight hours in a day and forty hours in a week. Considering the facts in the light most favorable to Boon, his allegations satisfy the pleading requirements of Landers at this stage of the litigation."). Although Plaintiff alleges "Plaintiff‘s job duties included . . . [o]pening and closing the banking center, coaching associates, handling customer complaints, and managing vault reserves" (Compl. ¶ 1), she does not allege she performed these duties off-the-clock. On the contrary, Plaintiff‘s allegation that she "was forced to work overtime hours for which she was compensated, though she had no choice as to whether or not she took the overtime" indicates she was in fact paid for overtime work. Id. ¶ 20 (emphasis added). There are also no allegations that putative class members performed duties similar to Plaintiff‘s or that they performed such tasks off-the-clock as well.

         Accordingly, the Court DISMISSES Plaintiff‘s first and second causes of action.

         B. Third Cause of Action

         Plaintiff brings her third cause of action - failure to provide meal and rest periods - under California Labor Code sections 226.7 and 512, and Industrial Welfare Commission ("IWC") Wage Orders. Compl. ¶¶ 54-72. Bank of America moves to dismiss this cause of action or, alternatively, to strike the class allegations. Mot. at 8-10. Bank of America also moves to dismiss or strike Plaintiff‘s request for attorneys‘ fees pursuant to Labor Code section 226.7. Id. at 24.

         California "wage and hour claims are . . . governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders, adopted by the IWC." Vaquero v. Stoneledge Furniture LLC, 9 Cal.App. 5th 98, 105 (2017), as modified (Mar. 20, 2017), review denied (June 21, 2017). The California Labor Code requires employers to give their nonexempt employees meal periods and rest periods during the workday. Cal. Lab. Code §§ 226.7, 512. Labor Code section 226.7(a) prohibits an employer from requiring an employee "to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission." Section 226.7 and IWC Wage Order No. 5-2001, operating in conjunction, require that an employer must authorize and permit all employees to take rest periods for "ten (10) minutes net rest time per four (4) hours" worked; "[h]owever, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours." Cal. Code Regs. tit. 8, § 11140(12). Additionally, Labor Code section 512(a) requires an employer to "provid[e] the employee with a meal period of not less than 30 minutes" for workdays lasting more than five hours, and provide two meal periods for workdays in excess of 10 hours, subject to waiver in certain circumstances.

         1. Individual Allegations

         Plaintiff does not state a claim for individual relief. Plaintiff‘s allegation that she was "consistently denied" her lunch or rest breaks is unsupported by facts sufficient to give this assertion plausibility. See Compl. ¶ 14. Even if Plaintiff‘s supervisor "often reprimanded [Plaintiff] when she would attempt to take a break or use the restroom" (id.), Plaintiff does not allege facts describing what precisely her supervisor said to allow the reasonable inference that the reprimands prevented Plaintiff from taking her break. Nor does the Complaint allege facts sufficient to show that Plaintiff was legally entitled to the breaks at issue.

         Plaintiff also fails to offer sufficient facts to support her contention that "almost never received an uninterrupted meal period or rest break while working at the Albany banking center" in violation of California labor laws. Id. For instance, the Complaint does not identify who interrupted Plaintiff‘s breaks. See Id. Plaintiff also does not offer any details as to what these interruptions entailed, nor does she describe what kind of work or tasks she performed during her breaks.

         As such, the Complaint lacks sufficient facts describing these interruptions to support a reasonable inference that Bank of America required Plaintiff to perform work during her breaks. See Brinker Rest. Corp. v. Superior Court, 53 Cal.4th 1004, 1040 (2012) ("[A]n employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks" but "[p]roof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability.").

         2. Class Allegations

         Plaintiff alleges she and "Class Members were not consistently authorized or permitted to take meal and rest breaks as required by California law." Compl. ¶ 28. Bank of America "did not consistently provide the meal and rest period to which Plaintiff and Class Members were entitled because business needs took precedence, routinely interfering with their breaks." Id. "If Plaintiff and Class Members failed to address business needs at any time, including during breaks, they were subject to discipline, up to and including termination." Id.

         These allegations, without more, fail to show Plaintiff is plausibly entitled to relief. Plaintiff does not describe these "business needs" or otherwise provide examples of the tasks putative class members performed during their breaks. Moreover, the fact that "business needs" interfered with breaks does not, in and of itself, suggest that Bank of America caused that interference. For instance, Plaintiff does not identify a Bank of America practice or policy that interfered with or prevented putative class members from taking breaks. Putative class members also could have elected to work through breaks on their own initiative. "[T]he employer is not obligated to police meal breaks and ensure no work thereafter is performed." Brinker, 53 Cal.4th at 1040-41. Rather, "[b]ona fide relief from duty and the relinquishing of control satisfies the employer‘s obligations" such that "work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b)." Id. As such, Plaintiff fails to allege sufficient facts to give rise to the reasonable inference that Bank of America unlawfully prevented putative class members from taking meal and rest breaks to which they were legally entitled.

         Plaintiff‘s remaining class allegations merely parrot the statutory or IWC language. See Id. ¶¶ 60-64. This is insufficient; formulaic recitations do not support her meal and rest break claim. See Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Plaintiff‘s contention that "a complaint 'does not need detailed factual allegations‘" oversimplifies Twombly‘s holding. Opp‘n at 7 (quoting Twombly, 550 U.S. at 555). In fact, the Supreme Court held that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . ., a plaintiff‘s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted); see Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint . . . may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively."); see also Haralson v. United Airlines, Inc., 224 F.Supp.3d 928, 941 (N.D. Cal. 2016) (plaintiff "is not required to plead his schedule in specific detail at the pleading stage, but he must at the very least make a plausible claim that he is entitled to relief because of the [d]efendants‘ misconduct").

         3. Attorneys‘ Fees

         Plaintiff alleges she "and Class Members are entitled to recover such amounts pursuant to California Labor Code section 226.7(b), plus interest thereon, attorneys‘ fees, and costs of suit." Compl. ¶¶ 70-71; see Id. ¶ 72 ("[C]ertain Class Members are entitled to recover . . . attorneys‘ fees and costs . . . pursuant to statute.").

         Bank of America argues attorneys‘ fees are not available under Labor Code section 226.7. Mot. at 24 (citing Kirby v. Immoos Fire Prot., Inc., 53 Cal.4th 1244 (2012)). As Plaintiff does not address this argument in her Opposition, she concedes this issue. See Singh v. Baidwan, 651 F. App‘x 616, 618 (9th Cir. 2016) (district court did not abuse its discretion in dismissing plaintiff‘s claims for failure to prosecute where plaintiff failed to meaningfully respond arguments defendant raised in motion to dismiss); Roy v. Contra Costa Cty., 2015 WL 5698743, at *3 n.7 (N.D. Cal. Sept. 29, 2015) ("When a non-moving party‘s opposition to a motion to dismiss fails to address the moving party‘s arguments regarding certain claims, the non-moving party has conceded that those claims fail."). Indeed, "[a]ttorneys‘ fees are not available on meal period claims under California Labor Code section 226.7." Deaver v. BBVA Compass Consulting & Benefits, Inc., 2014 WL 2199645, at *7 (N.D. Cal. May 27, 2014) (citing Kirby, 53 Cal.4th at 1248).

         4. Summary

         The Court finds Plaintiff fails to state a claim for failure to provide meal and rest periods. However, Bank of America does not explain why Plaintiff‘s class allegations related to her third cause of action or her request for attorneys‘ fees under Labor Code section 226.7 are "redundant, immaterial, impertinent, or scandalous." See Fed. R. Civ. P. 12(f). Accordingly, the Court declines to strike the class allegations and the request for attorneys‘ fees. The Court instead DISMISSES Plaintiff‘s request for attorneys‘ fees pursuant this statute WITHOUT LEAVE TO AMEND. The remainder of Plaintiff‘s third cause of action is DISMISSED WITH LEAVE TO AMEND.

         C. Fourth Cause of Action

         Bank of America moves to dismiss Plaintiff‘s fourth cause of action for failure to provide adequate time off pursuant to California Labor Code sections 551, 552, 554, and 558. Mot. at 10-11; see Compl. ¶¶ 73-78. Plaintiff does not oppose dismissal, but "request[s] the Court grant leave to amend this claim, so that Plaintiff[] may add additional facts to show that employees worked seven-day workweeks." Opp‘n at 7.

         The Court accordingly DISMISSES Plaintiff‘s Fourth Cause of Action. Bank of America argues dismissal should be without leave to amend because "Plaintiff has not satisfied Local Rule 10-1‘s requirement that she 'reproduce the entire proposed pleading.‘" Reply at 5; see Civ. L.R. 10-1 ("Any party filing or moving to file an amended pleading must reproduce the entire proposed pleading and may not incorporate any part of a prior pleading by reference.").

         "It is black-letter law that a district court must give plaintiffs at least one chance to amend a deficient complaint, absent a clear showing that amendment would be futile." National Council of La Raza v. Cegavske, 800 F.3d 1032, 1041 (9th Cir. 2015); see Eminence Capital, 316 F.3d at 1052 ("Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment."). The Court cannot find Plaintiff is precluded from seeking leave to amend simply because she has not offered an amended complaint in opposing Bank of America‘s Motion to Dismiss. Plaintiff indicates she can allege additional facts in support of her claim. The dismissal shall therefore be WITH LEAVE TO AMEND.

         C. Fifth Cause of Action

         Plaintiff‘s fifth cause of action alleges Bank of America failed "to pay PTO on termination" pursuant to California Labor Code section 227.3. Compl. ¶¶ 79-86.

         As is relevant here, Labor Code section 227.3 provides that

whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination.

         "California law does not require an employer to provide its employees with any paid vacation"; however, "if an employer chooses to include paid vacation as a portion of the employee‘s compensation, the employer is not free to reclaim it after it has been earned." Minnick v. Auto. Creations, Inc., 13 Cal.App. 5th 1000, 1004 (2017), review denied (Nov. 15, 2017). "[V]acation time 'is not a gratuity or a gift, but is, in effect, additional wages for services performed.‘" Id. (quoting Suastez v. Plastic Dress-Up Co., 31 Cal.3d 774, 779 (1982)). Put another way, "vacation pay is simply a form of deferred compensation." Suastez, 31 Cal.3d at 780.

         Plaintiff alleges Bank of America‘s PTO "policy constituted a vacation policy subject to California Labor Code section 227.3." Compl. ¶¶ 29, 81. Although "Plaintiff had accrued [] unused vacation time upon her termination" (id. ¶ 82), her final paycheck "did not reflect her unused sick leave, vacation time, and other paid time off to which she was entitled" (id. ¶ 25).

         To show Plaintiff and putative class members are owed unpaid, vested vacation, sick, and PTO wages, Plaintiff must first establish they are entitled to such wages. See Owen v. Macy's, Inc., 175 Cal.App.4th 462, 468 (2009) ("On its face, Labor Code section 227.3 does not require that an employer provide its employees with any paid vacation at all, contractually or as a matter of policy, as part of the employee compensation package."). It is insufficient that Plaintiff simply alleges that Bank of America had a vacation policy. Andresen v. Int'l Paper Co., 2013 WL 2285338, at *3 (C.D. Cal. May 23, 2013). Plaintiff does not allege facts regarding the specific policy or contact terms providing for paid vacation time, sick leave, or PTO; nor does Plaintiff offer facts in support of her allegation that she accrued vacation time. See Cal. Lab. Code § 226.7 ("[A]ll vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served. . . ." (emphasis added)); Perez v. Performance Food Grp., Inc., 2016 WL 1161508, at *4 (N.D. Cal. Mar. 23, 2016) (dismissing section 227.3 claim where "there [was] no allegation that a contract of employment or employer policy provides for paid vacations, that Plaintiff or putative class members, in fact, accrued vacation time, and that vested vacation time was forfeited" (internal quotation marks omitted)). Accordingly, the Court DISMISSES Plaintiff‘s Fifth Cause of Action.

         D. Sixth Cause of Action

         Plaintiff brings her sixth causes of action for failure to pay final wages on time under Labor Code sections 201 through 204. Compl. ¶¶ 87-94.

         Under Labor Code section 201(a), "[i]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately." But if an employee does not "hav[e] a written contract for a definite period [and] quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, " subject to certain exceptions. Cal. Lab. Code § 202(a). Employees are awarded a penalty if an employer willfully fails to pay unpaid wages pursuant to sections 201 and 202, among others. Cal. Lab. Code § 203(a). "A willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due." Cal. Code Regs. tit. 8, § 13520; see Amaral v. Cintas Corp. No. 2, 163 Cal.App.4th 1157, 1201 (2008) ("The settled meaning of 'willful, ‘ as used in section 203, is that an employer has intentionally failed or refused to perform an act which was required to be done.").

         Plaintiff alleges Bank of America "willfully failed to pay all final wages on time" to voluntarily and involuntarily terminated employees. Compl. ¶¶ 90-92. To the extent Plaintiff‘s sixth cause of action is based on Bank of America‘s failure to pay vested vacation, sick, and PTO wages, her waiting time penalty claim fails. As discussed above, Plaintiff fails to allege sufficient facts showing she and putative class members are entitled to such pay.

         Moreover, the Complaint does not contain facts alleging Bank of America acted willfully. Merely alleging willfulness is insufficient to satisfy Rule 8; rather, Plaintiff must support that allegation with facts. See Ritenour v. Carrington Mortg. Servs. LLC, 228 F.Supp.3d 1025, 1033 (C.D. Cal. 2017) (dismissing "causes of action for failure to pay wages timely upon discharge and during employment [where complaint] contain[ed] no description of what wages were due, when they were due, and when, if at all, they were paid"); Clark v. EmCare, Inc., 2017 WL 1073342, at *6 (C.D. Cal. Mar. 21, 2017) (dismissing waiting time penalty claim where "[p]laintiff d[id] not provide any facts in support of her argument that [defendant] willfully failed to compensate her upon discharge" because "[a]llegations that repeat the statutory language are insufficient"). Because she does not, the Court DISMISSES her sixth cause of action.

         E. Seventh Cause of Action

         Plaintiff‘s seventh cause of action alleges Bank of America failed to maintain accurate records as required by Labor Code sections 1174 and 1174.5. Compl. ¶¶ 95-100.

         Labor Code section 1174 sets forth the duties of employers. Among other things, it requires employers to maintain "a record showing the names and addresses of all employees" and "payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees employed at the respective plants or establishments" for a minimum period of three years. Cal. Lab. Code § 1174(c)-(d). An employer who fails to maintain these records is subject to a $500 civil penalty. Cal. Lab. Code § 1174.5.

         "Private rights of action for civil penalties under the Labor Code generally arise under the California Private Attorney General Act ('PAGA‘), not under the Labor Code directly." Cleveland v. Groceryworks.com, LLC, 200 F.Supp.3d 924, 958 (N.D. Cal. 2016). PAGA allows private individuals to recover civil penalties previously assessed and collected only by the Labor and Workforce Development Agency ("LWDA"). Cal. Lab. Code § 2699; see Lopez v. Friant & Assocs., LLC, 15 Cal.App. 5th 773, 780 (2017), review denied (Jan. 10, 2018) ...


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