United States District Court, S.D. California
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.
ORDER: (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT;
AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS'
MOTION TO STRIKE [DOC. 4]
T. Benitez, Judge
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.
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.
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.
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.
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.
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.
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.)
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.)
REQUEST FOR JUDICIAL NOTICE
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
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.
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).
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.
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.
§ 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.
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.
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. ¶
these reasons, Defendants' Motion to Dismiss Plaintiffs
first and second causes of action is GRANTED, with
leave to amend.
Failure to Provide Timely Wages
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 ...