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Bishop v. Boral Industries, Inc.

United States District Court, S.D. California

September 9, 2019

RYAN BISHOP, on behalf of himself and all others similarly situated, Plaintiff,
BORAL INDUSTRIES, INC., a California Corporation, BORAL ROOFING, LLC, a Delaware Limited Liability Corporation, and DOES 1-10, Defendants.


          Roger T. Benitez, Judge

         Before the Court is Defendants Boral Industries, Inc. ("Boral Inc."), and Boral Roofing, LLC, a Delaware Limited Liability Corporation ("Boral LLC") (collectively "Defendants") Motion to Dismiss and/or Strike Plaintiff Ryan Bishop's ("Bishop" or "Plaintiff) Complaint. (See Doc. No. 4.) The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78 78(b). After considering the moving, opposing, and reply papers, the Court GRANTS in part and DENIES in part the Motion to Dismiss and GRANTS in part and DENIES in part the Motion to Strike.

         I. BACKGROUND

         A. Factual Background

         As the Court is already well-versed as to the alleged facts in this case, and for the sake of brevity, the Court will only provide a summary of the events leading up to the institution of this action.

         Plaintiff is a California resident who worked for Defendants as a non-exempt, hourly-paid employee. (Doc. No. 1, Exh. A ¶ 1.) He began working for Defendants on April 12, 2018. Id. ¶ 15. Shortly after his employment commenced, Plaintiff complained that he was not receiving his second meal break, even though he was scheduled to work 12-hour shifts. Id. ¶ 16. Defendants allegedly told Plaintiff he was only allowed to take one meal break per 12-hour shift. Id. On or around May 4, 2018, Plaintiff took a second meal break. Id.¶ 17. On May 5, 2018, Defendants terminated Plaintiffs employment. Id. ¶ 18. Plaintiff alleges the paycheck he received after his termination did not include all the compensation he was rightfully owed by Defendants. Id. ¶ 19.

         In the Complaint, Plaintiff avers that the Defendants intentionally acted, joint and severally, with deliberate indifference and conscious disregard of the rights of Plaintiff and other employees of Defendants, by engaging in unfair business practices comprised of (1) failing to provide meal breaks, (2) failing to provide rest breaks, (3) failing to pay final wages, and (4) failing to provide timely and accurate wage statements. See Id.

         Plaintiff seeks to represent all current and former non-exempt employees of Defendants who "worked a shift greater than or equal to ten hours at any time since four years before the filing of this case." Id. ¶ 20.

         B. Procedural Background

         On October 29, 2018, Plaintiff filed his Complaint in the Superior Court of California, County of San Diego. (Doc. No. 1-1.) Plaintiffs Complaint alleges five causes of action: (1) violation of Industrial Welfare Commission ("IWC") Order No. 4-2001 and California Labor Code sections ("CLC") §§ 200, 226.7(b), 500, 512, 11198; (2) violation of IWC Order No. 4-2001 and CLC §§ 200, 500, 512, 1198; (3) violation of CLC §§ 201, 202, 203; (4) violation of CLC 226(a), and 226(e); and (5) violation of § 17200, etseq. of the California Business & Professions Code. Id. ¶¶ 28-54.

         On November 29, 2018, Defendants filed their Notice of Removal, invoking this Court's jurisdiction under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d) ("CAFA"). (See Doc. No. 1.)

         On December 6, 2018, Defendants' filed the instant Motion to Dismiss and/or Strike Plaintiffs Complaint. See Id. On December 31, 2018, Plaintiff opposed Defendants' Motion. (See Doc. No. 7.) Lastly, on January 7, 2019, Defendants replied in support of their Motion. (See Doc. No. 8.)


         In their Motion, Defendants request that the Court take judicial notice of various court filings, orders, and opinions. (Doc. No. 4-2 at 1-71; see Mot. Exs. A-F.) Defendants include a supplemental request for judicial notice in the Reply, seeking judicial notice of another court order. (Doc. No. 8-1 at 1-13; see Exh. G.) Plaintiff has not opposed either request. The Court GRANTS Defendants' request for judicial notice. See, e.g., Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (court may take judicial notice of court filings and other matters of public record); Peviani v. Hostess Brands, Inc., 750 F.Supp.2d 1111, 1117 (CD. Cal. 2010) (taking judicial notice of other district court opinions but noting that they were not binding authority).


         A. Motion to Dismiss

          Defendants move to dismiss Plaintiffs Complaint under Federal Rule of Civil Procedure 12(b)(6). Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiffs allegations fail to set forth a set of facts which, if true, would entitle the complainant to relief. Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible to survive a motion to dismiss). The pleadings must raise the right to relief beyond the speculative level; a plaintiff must provide "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 (citing Papasan v. Attain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, a court accepts as true a plaintiffs well-pleaded factual allegations and construes all factual inferences in the light most favorable to the plaintiff. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A court is not required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

         In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of the complaint and material properly submitted with the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. RichardFeiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Under the incorporation by reference doctrine, the court may also consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002). The court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

         When a motion to dismiss is granted, the court must decide whether to grant leave to amend. The Ninth Circuit has a liberal policy favoring amendments and, thus, leave to amend should be freely granted. See, e.g., DeSoto v. Yellow Freight System, Inc., 957 F.2d 655, 658 (9th Cir. 1992). However, a court need not grant leave to amend when permitting a plaintiff to amend would be an exercise in futility. See, e.g., Rutman Wine Co. v.E.&J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) ("Denial of leave to amend is not an abuse of discretion where the pleadings before the court demonstrate that further amendment would be futile."). /// /// 1. Failure to Provide Meal and Rest Periods Defendants move to dismiss Plaintiffs first and second causes of action for meal and rest break violations because according to Defendants, Plaintiff failed to allege whether "Defendants failed to provide any meal and rest breaks, whether Plaintiffs claims are limited to the purported failure to provide second meal breaks and third rest breaks only, or whether Plaintiff is alleging something different altogether." (Doc. No. 4-1 at 3-4.) Moreover, Defendants also argue that "Plaintiffs meal and rest break claims are also subject to dismissal for the additional reason that the Complaint contains only conclusory allegations that do not plausibly suggest that Plaintiff and/or the putative class members ("PCM") were not provided and/or authorized and permitted to take legally-compliant meal and rest breaks and/or failed to pay premiums for missed or otherwise non-compliant meal and rest breaks." Id.

         According to Plaintiff, he has sufficiently alleged the first and second causes of action for failure to provide meal and rest periods because "the policy giving rise to the alleged violations is straightforward and Plaintiffs allegations are based on a policy that did not comply with California law." (Doc. No. 7 at 3.) Plaintiff further contends that he "need not set forth each detail as the why the policy is invalid because plaintiff need not prove his case at the pleading stage." Id.

         Section § 226.7 of the California Labor Code requires an employer to provide its employees work-free meal and rest breaks and if an employer fails to do so, the employer is required to pay the employee one additional hour of pay at the employee's regular compensation rate for each workday that a meal or rest break was not provided. Cal. Lab. Code § 226.7. Section § 512 requires employers to provide its employees with a meal period not less than thirty minutes no later than the start of an employee's sixth hour of work. Cal. Lab Code § 512; Brinkerv. Sup. Ct, 53 Cal.4th 1004, 1041-42 (2012). Absent waiver, an employer must give an employee a second meal period not less than thirty minutes after ten hours of work. Cal. Lab. Code § 512; Brinker, 53 Cal.4th at 1042. An employer fulfills its obligation to provide its employees adequate meal breaks "if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted thirty-minute break, and does not impede or discourage them from doing so." Brinker, 53 Cal.4th at 1040; see also Rodriguez v. Taco Bell Corp., 896 F.3d 952, 956 (9th Cir. 2018) (holding the Brinker decision sets forth the authoritative standard for determining whether an employer adequately provided employees meal periods). An employer's "liability is contingent upon proof [the employer] knew or should have known off-the-clock work was occurring." Brinker, 53 Cal.4th 1051.

         With regards to the failure to provide meal periods, Plaintiff sufficiently alleges that Defendants maintained a policy of only permitting "each employee to take one meal break and two ten-minute rest breaks during his or her scheduled shift, even though a 12-hour shift requires two (2) meal breaks and three (3) rest breaks." (Doc. No. 1, Exh. A ¶ 10.) And Plaintiff has plausibly claimed that "Defendant has not received an exemption from providing off-duty meal and rest breaks to employees, yet its policy and practice is to only allow Plaintiff and other employees to take one off-duty meal break even if their shifts exceeded ten (10) hours, which was customary." Id. ¶ 11. But, Plaintiff fails to plead enough facts regarding how this supposed policy prevented Plaintiff from taking meal breaks or otherwise was not permitted to take legally compliant meal breaks. For example, there are no facts regarding when meal breaks were provided after the fifth hour of work. Plaintiff also insufficiently pleads that Putative Class Members did not receive a second meal break or the cause for not receiving a second meal break when allegedly working over a ten-hour shift. And the Complaint is devoid of specific facts that relate to Plaintiffs experiences. Plaintiff must set forth a factual basis to show that the failure to take legally compliant meal breaks was because of this unlawful policy.

         The same flaw applies to the second cause of action for failure to provide rest periods. Plaintiff has not asserted enough facts to state a plausible claim that Defendants required employees to remain on-duty during their rest breaks. Id. ¶ 36. Nor does Plaintiff plausibly allege facts indicating the Defendants knew or should have known that employees are never relieved of all duties during any breaks thereby preventing them from taking off-duty rest breaks during their shifts. See Id. ¶ 37.

         For these reasons, Defendants' Motion to Dismiss Plaintiffs first and second causes of action is GRANTED, with leave to amend.

         2. Failure to Provide Timely Wages

         Next, Defendants move to dismiss Plaintiffs third cause of action under Cal. Lab. Code § 203 for failure to pay all wages due at time of employment termination including all ...

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