United States District Court, N.D. California
ORDER RE: MOTION TO DISMISS RE: DKT. NO. 9
MARIA-ELENA JAMES, United States Magistrate Judge
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.").
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.
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).
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
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
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
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
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)).
FOR JUDICIAL NOTICE
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).
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.
First and Second Causes of Action
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.
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.").
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. 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.
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.
the Court DISMISSES Plaintiff‘s first
and second causes of action.
Third Cause of Action
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.
"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
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.
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.
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
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.
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.
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
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").
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.").
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).
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.
Fourth Cause of Action
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.
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
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
Fifth Cause of Action
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.
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
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.
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).
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.
Sixth Cause of Action
brings her sixth causes of action for failure to pay final
wages on time under Labor Code sections 201 through 204.
Compl. ¶¶ 87-94.
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.").
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
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.
Seventh Cause of Action
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.
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 §
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)