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Wyland v. Berry Petroleum Company, LLC

United States District Court, E.D. California

October 9, 2019

MICHAEL WYLAND, an individual, Plaintiff,
v.
BERRY PETROLEUM COMPANY, LLC, a Delaware limited liability company; and DOES 1 through 50, inclusive, Defendants.

          ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. No. 27)

         This matter is before the court on defendant Berry Petroleum Company, LLC's (“Berry”) motion for judgment on the pleadings as to plaintiff's fourth and sixth causes of action for civil penalties under the California Labor Code Private Attorneys' General Act (“PAGA”), California Labor Code § 2698 et seq. (Doc. No. 27.) A hearing on the motion was held on October 1, 2019. Attorney Michael Yadegaran appeared telephonically on behalf of plaintiff, and attorney Emily Camastra appeared telephonically on behalf of defendant. The court has considered the parties' briefs and arguments presented at the hearing, and for the reasons set forth below, will grant defendant's motion.

         BACKGROUND

         Plaintiff's second amended complaint (“SAC”) asserts seven causes of action. (See generally Doc. No. 21 (“SAC”).) In addition to five claims asserting violations of employment law on behalf of himself, plaintiff alleges two causes of action on a representative basis against Berry pursuant to PAGA. Specifically, plaintiff's fourth and sixth causes of action seek civil penalties for alleged meal and rest period violations on behalf of plaintiff and other allegedly aggrieved employees of Berry. (Id. at 13, 15.) On August 30, 2019, defendant Berry moved for judgment on the pleadings as to these two causes of action, arguing that: (1) pursuant to PAGA, plaintiff was first required to exhaust his administrative remedies by sending a notice to the California Labor and Workforce Development Agency (“LWDA”) setting forth the facts and theories supporting the alleged meal and rest period violations before filing suit; and (2) plaintiff's notice to LWDA in this regard fails to satisfy PAGA's administrative requirements for exhaustion. (Doc. No. 27 at 7.) On September 17, 2019, plaintiff filed his opposition to the pending motion, and on September 24, 2019, Berry filed its reply thereto. (Doc. Nos. 29, 30.)

         LEGAL STANDARD

         Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” In reviewing a motion brought under Rule 12(c), the court “must accept all factual allegations in the complaint as true and construe them in the light most favorable to the nonmoving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

         The same legal standard applicable to a Rule 12(b)(6) motion applies to a motion brought pursuant to Rule 12(c). Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Accordingly, “judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law.” Marshall Naify Revocable Tr. v. United States, 672 F.3d 620, 623 (9th Cir. 2012) (quoting Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999)); see also Fleming, 581 F.3d at 925 (noting that “judgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law”). The allegations of the nonmoving party must be accepted as true, while any allegations made by the moving party that have been denied or contradicted are assumed to be false. MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006). The facts are viewed in the light most favorable to the non-moving party and all reasonable inferences are drawn in favor of that party. Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353, 360 (9th Cir. 2005).

         ANALYSIS

         “Before an employee may file an action seeking to recover civil penalties [under PAGA], . . . he or she must comply with the Act's administrative procedures as set forth in section 2699.3.” Caliber Bodyworks, Inc. v. Superior Court, 134 Cal.App.4th 365, 370 (2005), disapproved on other grounds by ZB, N.A. v. Superior Court of San Diego Cty., 8 Cal. 5th 175 (2019). Section 2699.3 states in relevant part that an “aggrieved employee or representative shall give written notice by online filing with the [LWDA] and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.” Cal. Lab. Code § 2699.3 (emphasis added). “The evident purpose of the notice requirement is to afford the relevant state agency, the [LWDA], the opportunity to decide whether to allocate scarce resources to an investigation, a decision better made with knowledge of the allegations an aggrieved employee is making and any basis for those allegations.” Williams v. Superior Court, 3 Cal. 5th 531, 545-46 (2017). The notice “must describe facts and theories supporting the violation.” Iskanian v. CLS Transp. L.A., LLC, 59 Cal.4th 348, 380 (2014). But see Harris v. Best Buy Stores, L.P., No. 17-CV-00446-HSG, 2019 WL 343420, at *4 (N.D. Cal. Jan. 28, 2019) (“[W]hile a PAGA notice must specify facts and theories, it need not prove those facts and theories.”) (emphasis omitted). “[C]ompliance with the pre-filing notice and exhaustion requirements of the Act is mandatory, ” and failure to comply with these prerequisites is fatal to a PAGA cause of action. Caliber Bodyworks, 134 Cal.App.4th at 382, 384.

         Defendant Berry contends that plaintiff's fourth and sixth causes of action-seeking civil penalties for alleged meal and rest break violations-fail as a matter of law because the notice that plaintiff filed with the LWDA is deficient in that it failed to provide facts and theories supporting either alleged violation. (Doc. No. 27 at 11-17.) In support of its motion, Berry points the court to authority from and within the Ninth Circuit as well as from California state courts noting that “the notice provision requires something more than bare allegations of a Labor Code violation.” Brown v. Ralphs Grocery Co., 28 Cal.App. 5th 824');">28 Cal.App. 5th 824, 836 (2018), review denied (Feb. 20, 2019); see also Alcantar v. Hobart Serv., 800 F.3d 1047, 1057 (9th Cir. 2015) (“Plaintiff's letter-a string of legal conclusions with no factual allegations or theories of liability to support them-is insufficient to allow the Labor and Workforce Development Agency to intelligently assess the seriousness of the alleged violations.”); Soto v. Castlerock Farming & Transp. Inc., No. CIV-F-09-0701 AWI, 2012 WL 1292519, at *8 (E.D. Cal. Apr. 16, 2012) (finding an LWDA notice that stated an employer had a practice of denying rest and lunch periods to be insufficient for § 2699.3's requirements). In his opposition, plaintiff does not counter the authorities relied upon by Berry but, instead, merely contends in conclusory fashion that Berry's motion should be denied because his notice to the LWDA set forth sufficient facts and theories related to his meal and rest period allegations. (Doc. No. 29 at 4-7.) For the reasons that follow, the court disagrees, and finds that plaintiff's notice to the LWDA was insufficient as a matter of law because it failed to specify the facts and theories supporting the alleged meal and rest violations.

         With respect to plaintiff's fourth cause of action seeking civil penalties for alleged meal period violations, plaintiff's notice[1] to the LWDA does not even assert that Berry failed to provide him or other employees with meal periods, much less provide any facts or theories to support such an allegation. (See generally Doc. No. 28-1.) Although plaintiff's notice does list sections of California's Labor Code-§§ 512(a) and 226.7-that govern meal period violations, it does not otherwise provide any facts or theories supporting any such violation on Berry's part. (Id.) In Alcantar, the Ninth Circuit found a plaintiff's notice to the LWDA to be insufficient where the notice was simply “a series of legal conclusions.” 800 F.3d at 1057. There, the plaintiff's notice asserted that the employer “failed to pay wages for all time worked, ” “failed to pay overtime wages for overtime worked, ” “failed to include the extra compensation required by [the] California Labor Code, ” and so forth. Id. The court in Alcantar noted that “[t]he only facts or theories that could be read into th[at] letter are those implied by the claimed violations of specific sections of the California Labor Code . . .. This is insufficient.” Id.

         Here, plaintiff's notice to the LWDA, with respect to his fourth cause of action, is even more deficient than the one found to be insufficient in Alcantar because here plaintiff merely listed the operative sections of the California Labor Code and did not even attempt to spell out what the alleged violations might be. Plaintiff's contention that his notice states that defendant Berry violated his and other employees' rights “by not paying them premium wages in lieu of meal and rest periods” (Doc. No. 29 at 6) is of no import because this allegation: (1) is included in the notice under the heading “Failure to Provide Accurate Wage Statements, ” and does not appear to relate to plaintiff's meal break claim; (2) does not state that Berry failed to provide meal periods; and (3) does not provide any facts and theories to support such a claim. Accordingly, the court concludes that plaintiff's fourth cause of action fails as a matter of law and Berry is entitled to judgment on the pleadings as to that claim. Brown, 28 Cal.App. 5th at 837-38 (Allegations in a LWDA notice that identified “specific provisions” of the Labor Code were nothing more than a “string of legal conclusions that parroted the allegedly violated Labor Code provisions” that “did not state facts and theories supporting the alleged violations” and therefore could not “serve as notice of alleged violations”).

         With respect to plaintiff's sixth cause of action seeking civil penalties for alleged rest period violations, plaintiff's notice submitted to the LWDA failed to specify any facts and theories to support his rest period claim. Although the notice has a section labeled “Failure to Provide Rest Periods, ” the only facts or theories that plaintiff provided in support of his allegations were:

At all relevant times, Berry . . . violated, and/or caused to be violated, [California Labor Code §§ 226.7, 512, and 1198] by:
1. Failing to maintain practices that ensure that legally mandated rest periods are provided to Wyland and aggrieved employees, and that rest periods are affirmatively authorized ...

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