United States District Court, C.D. California
YURIRIA DIAZ, as an individual and on behalf of others similarly situated, Plaintiffs,
MACY'S WEST STORES, INC. dba Macy's, an Ohio corporation, and DOES 1-50, inclusive Defendants.
ORDER GRANTING MOTION TO DISMISS 
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
the Court is Defendant Macy's West Stores, Inc. dba
Macy's (“Macy's”) Motion to Dismiss for
failure to state a claim and failure to exhaust
administrative requirements. (Mot. to Dismiss
(“Mot.”), ECF No. 20.) For the following reasons,
Macy's Motion is GRANTED.
November 20, 2018, Plaintiff Yuriria Diaz-a former retail
worker-filed this wage and hour action in the Superior Court
of California, on behalf of herself and others similarly
situated, against her former employer, Macy's. (Notice of
Removal (“Notice”) Ex. A (“Compl.”),
ECF No. 1-1.) On January 22, 2019, Diaz amended her complaint
in the state court proceedings. (See Notice 3, Ex. H
(“First Am. Compl.”), ECF No. 1-8.) On February
14, 2019, Macy's removed this action to federal court.
(See Notice, ECF No. 1).
6, 2019, the parties filed their Joint Rule 26(f) Report.
(See Joint Report, ECF No. 13.) Therein, the parties
explained that the parties' arbitration agreement
requires arbitration of Diaz's individual
employment-related claims and precludes her from proceeding
with litigation on a class-wide basis. (Joint Report 3.) As a
result, Diaz sought leave to amend her complaint to dismiss
her class and individual California Labor Code (“Labor
Code”) claims, and allege only a representative claim
under the Private Attorneys General Act (“PAGA”),
Labor Code section 2698 et seq. (Joint Report 3.)
The Joint Report, signed and submitted by Diaz's counsel,
stated that Diaz would “not renew her individual claims
under the California Labor Code . . . in this or any other
forum” if granted leave to amend. (Joint Report 3.) The
following week, on May 10, 2019, the parties stipulated to
allow Diaz to file a Second Amended Complaint
(“SAC”). (Joint Stip. to Am., ECF No. 17.) The
Court granted the stipulation and Diaz filed the operative
SAC on May 13, 2019. (SAC, ECF No. 19.)
SAC, Diaz alleges a single PAGA cause of action premised on
various Labor Code violations, which include: (1) failure to
maintain records and provide accurate itemized wage
statements in violation of Labor Code sections 226, 1198, and
Wage Order 7, section 7; (2) failure to pay minimum wages and
proper overtime wages in violation of Labor Code sections
510, 1194, 1198, and Wage Order 7, section 3; (3) failure to
reimburse for all necessary expenditures or losses in
violation of Labor Code section 2802; (4) failure to pay all
wages upon termination in violation of Labor Code section
203; and (5) failure to provide suitable seating in violation
of Wage Order 7, section 14. (SAC ¶ 31(a)-(f).)
moves to dismiss Diaz's SAC for lack of standing and
failure to exhaust administrative requirements. (Mot. 10-11.)
may dismiss a complaint under Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) for lack of a cognizable legal
theory or insufficient facts pleaded to support an otherwise
cognizable legal theory. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To survive
a dismissal motion, a complaint need only satisfy the minimal
notice pleading requirements of Rule 8(a)(2)-a short and
plain statement of the claim. Porter v. Jones, 319
F.3d 483, 494 (9th Cir. 2003). The factual “allegations
must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). That is, the
complaint must “contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted).
a complaint satisfies the plausibility standard is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679. A court must construe all
“factual allegations set forth in the complaint . . .
as true and . . . in the light most favorable” to the
plaintiff. Lee v. City of Los Angeles, 250 F.3d 668,
679 (9th Cir. 2001). However, a court need not blindly accept
conclusory allegations, unwarranted deductions of fact, and
unreasonable inferences. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
district court grants a motion to dismiss, it should
generally provide leave to amend unless it is clear the
complaint could not be saved by any amendment. See
Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
Leave to amend may be denied when “the court determines
that the allegation of other facts consistent with the
challenged pleading could not possibly cure the
deficiency.” Schreiber Distrib. Co. v. Serv-Well
Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
Thus, leave to amend “is properly denied . . . if
amendment would be futile.” Carrico v. City and
Cty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir.
REQUEST FOR JUDICIAL NOTICE
preliminary matter, both parties request that the Court take
judicial notice of various documents. (See
Macy's Req. Judicial Notice (“RJN”), ECF No.
21; Diaz RJN, ECF No. 22-1.) Although a court is generally
limited to the pleadings in ruling on a Rule 12(b)(6) motion,
it may consider documents incorporated by reference in the
complaint or properly subject to judicial notice without
converting the motion into one for summary judgment.
Lee, 250 F.3d at 688-89. The Court may take judicial
notice of “fact[s] . . . not subject to reasonable
dispute” because they are “generally known within
the trial court's territorial jurisdiction” or
“can be accurately and readily determined from sources
whose accuracy cannot ...