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Tavares v. Cargill, Inc.

United States District Court, E.D. California

July 3, 2019

MARIBEL TAVARES, individually, and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act, Plaintiff,
CARGILL INCORPORATED, an unknown business entity; CARGILL MEAT SOLUTIONS CORP., an unknown business entity, Defendants.


         This matter is before the court on motions to dismiss[1] plaintiff Maribel Tavares' first amended complaint (“FAC”) for failure to state a claim on which relief can be granted brought on behalf of defendants Cargill, Inc. (“Cargill”) and Cargill Meat Solutions Corp. (“CMSC”). (Doc. Nos. 12, 16.) Plaintiff filed an opposition to these motions on September 19, 2018, and defendants replied on September 25, 2018. (Doc. Nos. 20, 22.) The court heard oral argument on October 2, 2018, with attorney Cody Kennedy appearing telephonically on behalf of plaintiff and attorney Tina Syring-Petrocchi appearing on behalf of defendants. For the reasons discussed below, defendants' motions to dismiss will be granted in part and denied in part.


         This case was originally filed in Fresno County Superior Court on April 20, 2018, and removed to this federal court on June 8, 2018 under the Class Action Fairness Act of 2005. (Doc. Nos. 1, 1-1.) Plaintiff filed the FAC on July 12, 2018. (Doc. No. 7.)

         In her FAC plaintiff alleges as follows. Defendants jointly and severally employed plaintiff as an hourly-paid, non-exempt employee from approximately April 2013 to approximately February 2017 in Fresno County. (Id. at ¶ 24.) According to plaintiff, defendants were her joint employers because they had the authority to hire and terminate plaintiff and other class members, exercised sufficient authority over the terms and conditions governing their employment, and supervised their daily employment activities. (Id. at ¶¶ 26-27.) Defendants continue to employ hourly-paid or non-exempt employees within California. (Id. at ¶ 28.)

         Defendants “engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt employees” by “failing to pay them for all regular and/or overtime wages earned and for missed meal periods and rest breaks.” (Id. at ¶¶ 25, 31.) Plaintiff and other class members “worked over eight hours in a day and/or forty hours in a week during their employment with defendants.” (Id. at ¶ 30.) Additionally, plaintiff and other class members were regularly required to perform unpaid work before clocking in and after clocking out for each shift due to time spent donning and doffing necessary uniforms and equipment. (Id. at ¶ 53.) Similarly, plaintiff and class members were not provided with uninterrupted meal and rest periods, free from being required to perform work duties, since they were required to spend time donning and doffing necessary uniforms and equipment. (Id. at ¶ 55.)

         Plaintiff and other class members did not receive all wages owed to them for the unpaid work they had performed upon their discharge or resignation. (Id. at ¶ 37.) Defendants did not provide accurate wage statements or keep complete and accurate payroll records because they used a time-keeping system that failed to record all hours worked by plaintiff and class members and consistently shaved time in their own favor by rounding time punches. (Id. at ¶¶ 40, 48-49, 54.) Finally, defendants failed to reimburse plaintiff and class members for business-related expenses for the specific uniforms and protective equipment-such as boots, cold suits, and protective helmets-which defendants required employees to purchase and maintain. (Id. at ¶¶ 41, 50, 56.)

         Plaintiff's FAC asserts the following nine causes of action: (1) failure to pay overtime wages in violation of California Labor Code (“Labor Code”) §§ 510 and 1198; (2) failure to provide lawful meal periods in violation of Labor Code §§ 226.7 and 512(a); (3) failure to provide lawful rest periods in violation of Labor Code §§ 226.7; (4) failure to pay minimum wage in violation of Labor Code §§ 1194, 1197, and 1197.1; (5) failure to pay wages due at termination in violation of Labor Code §§ 201 and 202; (6) failure to provide accurate itemized wage statements in violation of Labor Code § 226(a); (7) failure to reimburse business expenses in violation of Labor Code §§ 2800 and 2802; (8) violation of California's unfair competition law (“UCL”) codified at California Business & Professions Code §§ 17200, et seq.; and (9) a claim under California's Private Attorney General Act (“PAGA”) under Labor Code §§ 2698, et seq. (Id. at 13-26.)


         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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).

         In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).


         A. Plaintiff's Allegations under the California Labor Code

         Defendants move to dismiss each of plaintiff's nine causes of action in which violations of the Labor Code are asserted, arguing that plaintiff's FAC fails to allege facts sufficient to state cognizable claims. (Doc. No. 13.) Below, the court will address each of defendants' arguments.

         1. Claims One and Four: Unpaid Overtime and Unpaid Minimum Wages

         California law requires that an employer pay overtime wages to non-exempt employees at a rate of one- and one-half times their regular rate of pay for work in excess of eight hours in a day or forty hours in a week. Labor Code § 510. California law also requires that employees pay at least minimum wage to employees. Labor Code §§ 1194, 1197.

         With regard to her unpaid overtime claim plaintiff alleges that “[d]uring the relevant time period, plaintiff and other class members worked in excess of eight (8) hours in a day, and/or in excess of forty (40) hours in a week.” (Doc. No. 7 at ¶¶ 30, 43, 62.) According to the allegations of the FAC, on unspecified occasions plaintiff and prospective class members “performed unpaid work, including but not limited to work that was required to be completed off-the-clock . . . and work that was not compensated due to Defendant's time-shaving practices.” (Id. at ¶¶ 53-54, 63.) According to plaintiff, off-the-clock work included, but was not limited to, time spent “donning and doffing necessary uniforms and equipment.” (Id. at ¶ 53.) Plaintiff also alleges that defendants “engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt employees” because defendants failed to compensate them for “all regular and/or overtime wages earned and for missed meal periods and rest breaks in violation of California law.” (Id. at ¶¶ 31-32, 64.) In support of the unpaid minimum wages claim, the FAC alleges merely that, “[d]uring the relevant time period, Defendants failed to pay Plaintiff and the other class members at least minimum wages for all hours worked.” (Id. at ¶¶ 36, 45, 89.)

         Defendants contend that plaintiff's unpaid overtime and unpaid minimum wage claims are not cognizable as pled because her allegations are devoid of any factual detail. (Doc. No. 13 at 20, 24.) The Ninth Circuit has held that, “in order to 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 Communications, Inc., 771 F.3d 638, 644-45 (9th Cir. 2018).[2] The court described the amount of factual detail that must be alleged as “context-specific, ” stating:

A plaintiff may establish a plausible claim by estimating the length of her average workweek during the applicable period and the average rate at which she was paid, the amount of overtime wages she believes she is owed, or any other facts that will permit the court to find plausibility. Obviously, with the pleading of more specific facts, the closer the complaint moves toward plausibility. However, like the other circuit courts that have ruled before us, we decline to make the approximation of overtime hours the sine qua non of plausibility for claims brought under the FLSA. After all, most (if not all) of the detailed information concerning a plaintiff-employee's compensation and schedule is in the control of the defendants.

Id. at 645 (internal citations omitted). The Ninth Circuit held that the plaintiff in Landers had failed to sufficiently plead an overtime claim due to the absence of “any detail regarding a given workweek when Landers worked in excess of forty hours and was not paid overtime for that given workweek and/or was not paid minimum wages.” Id. at 646. In so holding, the court noted that a plaintiff “should be able to allege facts demonstrating there was at least one workweek in which they worked in excess of forty hours and were not paid overtime wages.” Id.

         Since the decision in Landers, district courts in California have varied somewhat in their determination of precisely what allegations are sufficient to state such a claim. See Sanchez v. Ritz Carlton, No. CV 15-3484 PSG (PJWx), 2015 WL 5009659, at *2 (C.D. Cal. Aug. 17, 2015) (“In Landers' wake, courts have offered varying and possibly inconsistent standards for stating wage-and-hour claims under California law.”); see also Tan v. GrubHub, Inc., 171 F.Supp.3d 998, 1007-08 (N.D. Cal. 2016) (“On the one hand, Landers clarifies that mere conclusory allegations that class members ‘regularly' or ‘regularly and consistently' worked more than 40 hours per week-without any further detail-fall short of Twombly/Iqbal . . .. On the other hand, Landers does not require the plaintiff to identify an exact calendar week or particular instance of denied overtime; instead, the allegations need only give rise to a plausible inference that there was such an instance.”). Typically, courts have found such a claim sufficiently pled so long as the plaintiff has alleged facts supporting a plausible inference, rather than merely alleging a bare violation of the statute or parroting the statutory language. See, e.g., Kries v. City of San Diego, No. 17-cv-1464-GPC-BGS, 2018 WL 3455996, at *3-4 (S.D. Cal. July 18, 2018) (allegations that one plaintiff had worked more than 40 hours per week in 140 work weeks and the other had worked more than 40 hours per week in 75 work weeks but were paid less than required because of the manner in which the overtime rate was calculated, were sufficiently detailed to state a claim); Martinez v. John Muir Health, No. 17-cv-05779-CW, 2018 WL 1524063, at *3 (N.D. Cal. Mar. 28, 2018) (finding claims were sufficiently alleged where the complaint “does not merely ‘parrot the statutory language of the FLSA' ”) (quoting Landers, 771 F.3d at 643); Brum v. MarketSource, Inc., No. 2:17-cv-241-JAM-EFB, 2017 WL 2633414, at *2 (E.D. Cal. June 19, 2017) (allegations that plaintiff had to “perform between 10 to 15 minutes of off-the-clock work during meal breaks, three to four times per week” and “worked shifts in excess of eight hours one to two times per week” were sufficient to state overtime and minimum wage claims). Additionally, several courts have noted that a plaintiff need not allege particular examples of overtime and minimum wage violations in order to state a claim following the decision in Landers. See Tan, 171 F.Supp.3d at 1007-08; Varsam v. Lab. Corp. of Am., 120 F.Supp.3d 1173, 1178 (S.D. Cal. 2015) (“Other courts have agreed that plaintiffs need not plead particular instances of unpaid overtime before being allowed to proceed to discovery.”); see also Bush v. Vaco Tech. Servs., LLC, No. 17-cv-05605-BLF, 2018 WL 2047807, at *9 (N.D. Cal. May 2, 2018) (noting plaintiff “need not identify a calendar week or particular instance where she was denied overtime wages”). But see Reed v. AutoNation, Inc., No. CV 16-08916-BRO (AGRx), 2017 WL 6940519, at *4-5 (C.D. Cal. April 20, 2017) (concluding that Landers does not require allegations of a particular example of a minimum wage violation but does require alleging a specific instance of an overtime claim).

         Here, the factual allegations of the FAC in support of plaintiff's unpaid overtime claim, however, provide nothing beyond “an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. The conclusory allegation that plaintiff and others worked overtime does not allege any facts-such as the typical work schedule or the approximate number of hours worked during any given period-that could plausibly support a claim for unpaid overtime. (See Doc. No. 7 at ¶¶ 30, 43, 62) (“During the relevant time period, plaintiff and other class members worked in excess of eight (8) hours in a day, and/or in excess of forty (40) hours in a week.”). Such allegations are insufficient even under the most liberal pleading standard employed in the decisions reviewed above. See Bush, 2018 WL 2047807, at *9 (plaintiff's “bare assertion that she ‘regularly' worked more than the statutory requirement is conclusory and insufficient under the standard set forth in Landers”); Heck v. Heavenly Couture, Inc., No. 3:17-CV-0168-CAB-NLS, 2017 WL 4476999, at *4 (S.D. Cal. Oct. 6, 2017) (merely alleging that plaintiff worked “more than forty hours” and was not adequately compensated was insufficient to state overtime claim); McMillian v. Overton Sec. Servs., Inc., No. 17-cv-03354-JSC, 2017 WL 4150906, at *2-3 (N.D. Cal. Sept. 19, 2017) (allegations that plaintiff worked “in excess of eight hours in a day” insufficient to state an overtime claim); Haralson v. United Airlines, Inc., 224 F.Supp.3d 928, 942 (N.D. Cal. 2016) (concluding that the plaintiff's complaint failed to state an overtime claim because it “fail[ed] to provide any factual information regarding whether he worked more than forty hours in any given workweek”).

         The same is true as to plaintiff's allegations in support of her minimum wage violation claim. See Landers, 771 F.3d at 646 (finding that general allegations were insufficient to state a plausible claim for unpaid overtime and minimum wage violations where the plaintiff did not include “any details regarding a given workweek when [he] worked in excess of forty hours and . . . was not paid minimum wages”).

         Plaintiff also alleges she and prospective class members worked off-the-clock without receiving the proper regular and/or overtime wage compensation from defendants. (Doc. No. 7 at ¶ 63.) These allegations suggest that plaintiff may be attempting to assert unpaid overtime and unpaid minimum wage claims based on defendants requiring plaintiff to perform work off-the-clock. The FAC, however, does not include any factual allegations indicating how, under what circumstances or when plaintiff was allegedly required to work off-the-clock, or what work she purportedly performed when required to do so. The only other potential relevant factual allegation in the FAC is that off-the-clock work, included, but was not limited to, time spent “donning and doffing necessary uniforms and equipment.” (Id. at ¶ 53.) Even if this allegation were construed to relate to an overtime and minimum wage claim based on uncompensated work time, plaintiff has not alleged any facts that, if proven, would show that this time was not compensated nor that would show how it should have been compensated. See Snap! Mobile, Inc. v. Croghan, No. 18-CV-04686-LHK, 2019 WL 884177, at *12 (N.D. Cal. Feb. 22, 2019); Lopez v. Wendy's Int'l, Inc., No. 11-CV-00275 MMM (JCx), 2011 WL 6967932, at *3 (C.D. Cal. Sept. 19, 2011). Therefore, plaintiff's first and fourth causes of action will be dismissed.

         a. Seeking Statutory Penalties on Unpaid Minimum Wage Claim is Time-Barred

         In her fourth cause of action plaintiff also seeks “general unpaid wages and such general and special damages as may be appropriate, ” as well as “statutory wage penalties pursuant to California Labor Code section 1197.1.” (Doc. No. 7 at 18, 29.) Defendants argue that to the extent plaintiff is seeking the award of statutory penalties under § 1197.1 with respect to this cause of action, the award of such penalties is barred by the one-year statute of limitations set out in California Code of Civil Procedure 340(a). (Doc. No. 13 at 32-33.)

         Section 1197.1 provides, in part, that an employer is liable for civil penalties in the amount of “one hundred dollars ($100) for each underpaid employee for each pay period for which the employee is underpaid [for any initial violation that is intentionally committed];” and “two hundred fifty dollars ($250) for each underpaid employee” for each subsequent violation regardless of whether the initial violation is intentionally committed. Cal. Labor Code § 1197.1(a)-(b). California has a one-year statute of limitations for “[a]n action upon a statute for a penalty or ...

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