Mayen v. Cal Central Harvesting, Inc. ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JULIO MAYEN, individually on his own CASE NO. 1:21-CV-0145 AWI JLT behalf and on behalf of all others similarly 8 situated, ORDER ON DEFENDANT’S MOTION 9 Plaintiff TO DISMISS 10 v. (Doc. No. 34) 11 CAL CENTRAL HARVESTING, INC., and DOES 1-100 inclusive, 12 Defendants 13 14 15 This is a putative class action brought by Plaintiff Julio Mayen (“Mayen”) against his 16 former employer Cal Central Harvesting, Inc. (“CCH”). Following an order on a Rule 12(c) 17 motion by CCH, the operative complaint is the First Amended Complaint (“FAC”). Mayen 18 alleges seven violations of the California Labor Code, violation of Cal. Bus. & Prof. Code § 17200 19 for unfair competition (“the UCL”), and violation of 29 U.S.C. § 1801 et. seq. the Agricultural 20 Worker Protection Act (“AWPA”). Currently before the Court is Defendant’s Rule 12(b)(6) 21 motion to dismiss. For the reasons that follow, Defendant’s motion will be granted in part and 22 denied in part. 23 24 RULE 12(b)(6) FRAMEWORK 25 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 26 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In 27 reviewing a complaint under Rule 12(b)(6), all well-pleaded allegations of material fact are taken 28 as true and construed in the light most favorable to the non-moving party. Benavidez v. County of 1 San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021). However, complaints that offer no more than 2 “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not 3 do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Benavidez, 993 F.3d at 1145. The Court is “not 4 required to accept as true allegations that contradict exhibits attached to the Complaint or matters 5 properly subject to judicial notice, or allegations that are merely conclusory, unwarranted 6 deductions of fact, or unreasonable inferences.” Seven Arts Filmed Entm’t, Ltd. v. Content Media 7 Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013). To avoid a Rule 12(b)(6) dismissal, “a 8 complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is 9 plausible on its face.” Iqbal, 556 U.S. at 678; Mollett, 795 F.3d at 1065. “A claim has facial 10 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 11 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; Somers 12 v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “Plausibility” means “more than a sheer 13 possibility,” but less than a probability, and facts that are “merely consistent” with liability fall 14 short of “plausibility.” Iqbal, 556 U.S. at 678; Somers, 729 F.3d at 960. If a motion to dismiss is 15 granted, “[the] district court should grant leave to amend even if no request to amend the pleading 16 was made . . . .” Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016). However, leave to 17 amend need not be granted if amendment would be futile or the plaintiff has failed to cure 18 deficiencies despite repeated opportunities. Garmon v. County of L.A., 828 F.3d 837, 842 (9th 19 Cir. 2016). 20 21 FACTUAL BACKGROUND 22 Mayen is an individual who resides in Kern County, California and is a seasonal 23 agricultural worker within the meaning of the AWPA. Mayen was employed by CCH, who is a 24 farm labor contractor who provides agricultural employees to various agricultural businesses and 25 farms throughout Kern County. Mayen and the Class enter into working arrangements with CCH 26 each agricultural season. The working arrangements include the understanding that CCH would 27 pay Mayen and the Class either an hourly rate or a piece rate, depending on the work being 28 performed. The arrangements required CCH to pay Mayen and the Class their agreed upon wages 1 for all hours worked or pieces performed, for required rest periods, to abide by applicate 2 California Industrial Welfare Commission Wage Orders (“Wage Order”), and to provide itemized 3 wage statements. However, Mayen and the Class routinely worked seven days a week and more 4 than ten hours in a workday, but were not compensated for any hours worked in excess of ten 5 hours or paid premium wages for the sixth and seventh workdays. Mayen and the Class routinely 6 worked more than ten hours in a workday. Mayen and the Class would average 55 hours worked 7 per week, depending on the week, and when paid by the hour, pay rate would be $11 per hour 8 (when paid on a piece rate, the amount would vary). CCH’s practice and policy was to not 9 compensate Mayen and the Class for hours worked in excess of ten in a workday. On an average 10 55 hour work week, Mayen and the Class were entitled to be paid $247.50 in overtime. CCH also 11 did not permit the Class to take full 10 minute rest periods or full 30 minute meal periods, but 12 instead required the Class to remain at the workplace and to take as short a break as possible. 13 Further, when paid by a piece rate, CCH did not compensate Mayen and the Class or account for 14 rest periods. CCH also required that Mayen and the Class purchase their own tools which were 15 indispensable for performing the work, yet CCH never issued reimbursements for the tools. CCH 16 also required Mayen and the Class to travel between fields in their own vehicles, sometimes as 17 often as three times per day, with a 10 to 15 minute travel time. However, CCH did not record or 18 pay for travel time between fields or reimburse Mayen and the Class for using their own vehicles. 19 Finally, when either the harvest season ended or an employee quit or was discharged before the 20 season ended, CCH did not timely pay all wages owed. 21 From the above allegations, Mayen on behalf of himself and the putative Class alleges the 22 following causes of action: (1) failure to pay overtime (hours worked in excess of 10 per day, and 23 days worked on the sixth and seventh workdays) in violation 8 Cal. Code Regs. § 11140(3)(A) and 24 Labor Code § 1194; (2) failure to pay minimum wages in violation of Labor Code § 1197 and 25 Wage Order 14; (3) failure to provide an itemized wage statement in violation of Labor Code § 26 226(a); (4) failure to timely pay wages upon termination or resignation in violation of Labor Code 27 §§ 201(a) and 202(a); (5) failure to provide rest breaks in violation of Labor Code § 226.7; (6) 28 failure to pay for unprovided meal breaks in violation of Labor Code § 512; (7) failure to 1 reimburse for expenses reasonably incurred in violation of Labor Code § 2802 and 29 U.S.C. § 2 1832(c); (8) violating the AWPA by failing to pay wages due, post a notice setting for rights and 3 protections, and violating the terms of working arrangements; and (9) unfair competition under the 4 UCL. 5 6 DEFENDANT’S MOTION 7 Defendant’s Argument 8 CCH argues that the first, fourth, fifth, sixth, seventh, eighth, and ninth causes of action 9 should be dismissed. 10 As to the first cause of action, CCH argues that the FAC continues to include vague and 11 conclusory allegations and that the new factual allegations do not support a plausible claim. There 12 is no information about shifts (including duration) or specific policies regarding overtime. Mayen 13 alleges that he is owed an average of $247.50 in overtime per week based on an average work 14 week of 55 hours. With a base hourly rate of $11, and an overtime rate of $16.50, Mayen is 15 claiming that he and the Class are entitled to 15 hours of overtime. However, an employee could 16 work as many as 60 hours over a six day period without triggering any overtime obligations under 17 Wage Order 14. The only fact that would constitute a violation of Wage Order 14 is the allegation 18 that Mayen worked more than 10 hours per day, but the Court has already held that this allegation 19 is too conclusory. Moreover, this allegation appears inconsistent with the language that Mayen 20 averaged 55 hours per week over a six day period. Further, the FAC continues to misstate Wage 21 Order 14 in that the FAC alleges violations of overtime pay for a sixth day worked, when in fact 22 Wage Order 14 requires overtime wages for working a seventh day. Finally, Mayen fails to 23 identify a specific workweek in which he was not paid overtime. 24 As to the fourth cause of action for waiting time penalties due to failing to pay wages upon 25 termination or resignation, the claim is too conclusory. The FAC alleges that CCH failed to pay 26 Mayen and class the wages due upon resignation, more than 30 days elapsed form the time that 27 Mayen or the class left CCH’s employ, and that each employee is owed at least $2,640 in waiting 28 time penalties. The FAC fails to allege if Mayen or any class member was discharged or quit, 1 does not allege when any relevant separation occurred, does not identify what any class members 2 monthly wages were, when the wages were owed (either immediately upon termination or with 72 3 hour upon resignation), and there is nothing that demonstrates willfulness. 4 As to the fifth cause of action for rest period violations, the FAC merely recites the 5 relevant statutory language and that CCH would require Mayen and the class to take as short a 6 break as possible, typically lasting only a few minutes to go to the bathroom or other brief activity. 7 There are no allegations about workloads, shift schedules, company policies, possible discipline 8 for taking longer breaks, or when any violations occurred, including whether Mayen had worked a 9 shift entitling him to a break. The breaks described could have been merely bathroom breaks that 10 were granted but not legally required. 11 As to the sixth cause of action for failing to provide meal periods, the FAC merely recites 12 the relevant statutory language and then alleges that CCH would require Mayen and the class to 13 eat as quickly as possible, prohibited them from leaving the work area, and the period would last 14 about 10 minutes. The FAC fails to allege who prohibited employees from taking a longer meal 15 period, how they were forced to stay in the work area, what policies existed on meal periods, 16 where Mayen and the class were working during any meal period, what dates the meal period 17 violations occurred, the hours worked when a meal period was allegedly cut short, and whether 18 any class member was entitled to a meal period on a day when a shortened meal period was 19 provided. 20 As to the seventh cause of action for failing to reimburse expenses reasonably incurred, the 21 FAC merely recites the relevant statutory language and then alleges that Mayen and the class were 22 required to provide their own protective equipment and hand tools, the cost of which varied and 23 are subject to proof. However, the FAC does not definitively allege that any Class member was 24 required to purchase equipment or tools, no specific hand tools or protective equipment are 25 identified, it is unknown when or how the equipment and tools were purchased or how much any 26 Class member paid for the tools, and whether any Class member sought reimbursement. 27 As to the eighth cause of action for violations of AWPA, the Court previously dismissed 28 claims based on AWPA’s posting requirement (§ 1831(b)) because there was only a bare 1 allegation. The FAC added no new allegations and thus, continues to fail to state a plausible 2 claim. Also, with respect § 1831(c), the allegations are vague and fail to identify who 3 communicated to Mayen or the class that they would be provided with an itemized wage 4 statement, when the communication occurred, or how any class member accepted that the itemized 5 wage statement would become part of the working arrangement. 6 As to the ninth cause of action for violation of the UCL, as a derivative claim, any claim 7 that is dismissed as inadequately pled cannot support a UCL claim. Further, waiting time 8 penalties and penalties for alleged meal and rest period violations are not recoverable under the 9 UCL because these penalties do not constitute restitution. Finally, as a former employee, Mayen 10 has no standing to seek injunctive relief against CCH under the UCL. 11 Finally, CCH argues that because the Court already granted leave to amend a prior time, 12 dismissal of the above claims should be without leave to amend. 13 Plaintiff’s Opposition 14 Mayen argues that, with limited exception, the FAC alleges plausible claims. 15 As to the first cause of action, Mayen argues that that the FAC alleges that he worked more 16 than 10 hours per day and regularly worked seven days a week, yet he received no overtime. The 17 FAC also includes the rate of pay at $11 per hour, identifies that shifts were generally over 10 18 hours per day and over 55 hours per week, alleges that CCH has a policy of not paying overtime 19 or compensating for off the clock work, and estimates that Mayen is owed $247.50 of unpaid 20 overtime per week. This satisfies the pleading requirements of Landers. However, Mayen 21 acknowledges that the FAC misstates Wage Order 14, contains incorrect information regarding a 22 sixth workday, and does not correctly allege an overtime calculation based on a seven day 23 workweek. Mayen requests leave to amend this claim to correct the erroneous allegations. 24 Specifically, Mayen explains that an amended complaint would eliminate references to a sixth 25 day, allege that he and the class worked 70 hours in a seven day work week, and would be entitled 26 to $165 per week of unpaid overtime. 27 As to the fourth cause of action, Mayen argues that the FAC sufficiently alleges a plausible 28 claim for wait time violations. The FAC alleges that CCH had a uniform policy of requiring the 1 class to perform off the clock work and failing to pay all wages due when paid by piece rate. CCH 2 also did not reimburse the class for the class’s necessary expenditures. The FAC alleges that the 3 Class either quit or were discharged during or between various harvests, but CCH failed to timely 4 pay all wages due at the time of separation and that each class member is owed at least $2,640 in 5 waiting time penalties. These allegations support a plausible claim. 6 As to the fifth and sixth causes of action, the FAC alleges that CCH failed and refused to 7 authorize or permit the class to take 10 minute rest periods for every four hours worked. Instead, 8 CCH required the class to take as short a break as possible that usually lasted only a few minutes. 9 The FAC alleges that CCH owes them $11 per violation of the rest break requirement. Similarly, 10 CCH did not permit the Class to leave the rest area, and would typically only permit a 10 minute 11 meal break. The FAC alleges that CCH owes the class $11 per violation of the meal break 12 requirement. These allegations support plausible claims. 13 As to the seventh cause of action, the FAC alleges that the class was required to provide 14 their own tools and protective gear that were necessary to the performance of the work required of 15 them and to travel in their own vehicles between fields. However, CCH did not reimburse the 16 class for any of these necessary and required work related expenses. These allegations support a 17 plausible claim. These allegations support a plausible claim. 18 As to the eighth cause of action, Mayen acknowledges that he did not include additional 19 factual allegations with respect to § 1831(b) and requests leave to amend. With respect to § 20 1831(c), Mayen alleges that the FAC adequately alleges the existence of “working arrangements.” 21 The working arrangement are created at or near the time of hire. As part of the working 22 arrangements, it was understood through words, conduct, practice, custom, or usage that the class 23 would be paid an hourly rate or a piece rate, that CCH would follow California’s wage orders and 24 laws, including providing an itemized wage statement. The FAC also alleges that these working 25 arrangements are contracts under the AWPA. Therefore, a plausible claim under the AWPA for 26 violating working arrangements is pled. These allegations support a plausible § 1832(c) claim. 27 Finally, as to the UCL, because the FAC properly alleges various causes of action, those 28 causes of action form a basis for valid UCL claims. 1 Discussion 2 1. First Cause of Action – Failure to Pay Overtime 3 a. Legal Standards 4 In California, “any employee receiving less than . . . the legal overtime compensation 5 applicable to the employee is entitled to recover in a civil action the unpaid balance of the full 6 amount of this . . . overtime compensation, including interest thereon, reasonable attorney’s fees, 7 and costs of suit.” Cal. Lab. Code § 1194(a); Cortez v. Purolator Air Filtration Products Co., 23 8 Cal.4th 163, 169 n.5 (2000). Agricultural workers covered by IWC Wage Order No. 14 “shall not 9 be employed more than ten (10) hours in any one workday or more than six (6) days in any 10 workweek unless the employee receives one and one-half (1 1/2) times such employee’s regular 11 rate of pay for all hours worked over ten (10) hours in any workday and for the first eight (8) hours 12 on the seventh (7th) day of work and double the employee’s regular rate of pay for all hours 13 worked over eight (8) on the seventh (7th) day of work in the workweek.” 8 Cal. Code Regs. § 14 11140(3)(A)(1); Alcala v. Western Ag. Enterprises, 182 Cal.App.3d 546, 548 n.1 (1986). 15 To properly allege a Labor Code § 1194 failure to pay overtime claim, it is inappropriate to 16 merely recite statutory language or rely on mere conclusory statements that are nothing more than 17 labels or the statutorily required elements. See Landers v. Quality Communs., Inc., 771 F.3d 638, 18 644 (9th Cir. 2015); Ritenour v. Carrington Mortg. Servs. LLC, 228 F.Supp.3d 1025, 1033 (C.D. 19 Cal. 2017). Rather, a plaintiff must include sufficient factual allegations that plausibly indicate 20 that the plaintiff worked more than 10 hours a day or worked more than six days in a workweek, 21 yet did not receive overtime pay. See Landers, 771 F.3d at 644-45;1 Ritenour, 228 F.Supp.3d at 22 1033. For example, a plausible § 1194 claim can be alleged by estimating the average hours in a 23 workday or workweek of the plaintiff during the applicable period, the average rate at which the 24 plaintiff was paid, and the overtime wages that the plaintiff believes he is owed. See Landers, 771 25 F.3d at 645; Ritenour, 228 F.Supp.3d at 1033. However, plausibility is “context specific” and a 26 27 1 The Landers pleading standard has been extended to cover claims under Labor Code § 227.6 for rest break violation and Labor Code § 512 for meal break violations. Perez v. DNC Parks & Resorts at Sequoia, 2020 U.S. Dist. LEXIS 28 134590, *19 (E.D. Cal. July 29, 2020); Shann v. Durham Sch. Servs., L.P., 182 F.Supp.3d 1044, 1048 (C.D. Cal. 1 variety of other factual allegations may permit a court to find that a plaintiff has plausibly alleged 2 that he was not paid owed overtime due for workday(s) or workweek(s). See Landers, 771 F.3d at 3 645; Hansber v. Ulta Beauty Cosmetics, LLC, 2021 U.S. Dist. LEXIS 192456, *19-*20 (E.D. Cal. 4 Oct. 5, 2021). 5 b. Resolution 6 There appears to be no dispute that the first cause of action is flawed. The allegation that 7 the class regularly worked 10 hours a day for six or seven days a week is inconsistent with the 8 allegation that the class’s average work week consisted of 55 hours worked. Further, the 9 allegation that the class is owed $247.50 per week in overtime means that the class is claiming 15 10 hours of overtime ($16.50 x 15 hours = $247.50), which means 40 hours of the 15 hour work week 11 was for non-overtime hours. Considering that overtime is owed when an employee either works 12 more than 10 hours a day or works on a seventh workday, Mayen’s calculation does not plausibly 13 indicate the Class either 10 hours worked per day or worked on a seventh day. Mayen himself 14 acknowledges that the first cause of action is not consistent with Wage Order 14, which is an 15 admission that no plausible claim for overtime wages is actually stated. Hence, Mayen’s request 16 to amend the FAC to eliminate references to a sixth workday, change the hours worked per week 17 to 70, and change the amount of overtime owed is appropriate. 18 Given Mayen’s recognition that the FAC’s first cause of action is infirm, and considering 19 that Mayen is contending that he and the class at least regularly worked a seventh workday, the 20 Court cannot say that amendment would be futile. Therefore, the Court will dismiss the first cause 21 of action with leave to amend. However, in addition to the changes identified by Mayen, he 22 should also include an allegation that actually identifies and describes a typical work week in 23 which overtime was due but not paid. While Mayen does not need to specifically identify a 24 particular week (e.g. the March 17, 2017 through March 23, 2017), Mayen should include 25 allegations that describe the days the workweek began and ended, the time each workday began, 26 and the time that each workday ended. See Barajas v. Blue Diamond Growers, Inc., 2022 U.S. 27 Dist. LEXIS 68791, *39-*40. These allegations, combined with the changes that Mayen himself 28 requests leave to make, should result in a plausible claim. 1 2. Fourth Cause of Action – Labor Code §§ 201, 202 – Failure to Pay Wages upon 2 Termination or Resignation 3 California law requires wages to be paid in a timely manner at an employee’s separation. 4 “If an employer discharges an employee, the wages earned and unpaid at the time of discharge are 5 due and payable immediately.” Cal. Labor Code § 201(a); Bernstein v. Virgin Am., Inc., 3 F.4th 6 1127, 1143 (9th Cir. 2021). When an employee without a written contract for a definite period 7 quits, “his or her wages shall become due and payable not later than 72 hours thereafter, unless the 8 employee has given 72 hours previous notice of his or her intention to quit, in which case the 9 employee is entitled to his or her wages at the time of quitting.” Cal. Labor Code § 202(a); 10 Bernstein, 3 F.4th at 1143. Where an employer willfully fails to comply with §§ 201 and 202 11 upon an employee’s separation, “the wages of the employee shall continue as a penalty from the 12 due date thereof at the same rate until paid or until an action therefor is commenced; but the wages 13 shall not continue for more than 30 days.” Cal. Labor Code § 203(a); Bernstein, 3 F.4th at 1143. 14 Here, the Court finds that the FAC plausibly alleges a for claim for wait time penalties 15 under Labor Code § 203. The FAC explains that Class members are seasonal agricultural 16 workers. See FAC ¶¶ 3(b), 10, 37. Some of the Class members quit before a particular harvest 17 season ends, and some are terminated before a harvest season ends. See id. at ¶ 37. However, as 18 seasonal employees, by definition the Class would at a minimum be terminated at the end of a 19 harvest season. Cf. id. Thus, the nature of the employment reasonably demonstrates that the 20 Class either quit or was terminated at some point during their employment with CCH. Further, the 21 Court previously found that Mayen had alleged plausible claims against CCH for failing to pay the 22 Class for performing necessary off the clock tasks. If CCH was wrongfully failing to pay the 23 Class for performing necessary tasks, then the amount the Class should have been paid for those 24 tasks would not be included in any final paycheck. Additionally, the FAC alleges that more than 25 30 days have elapsed since the Class ended their employment with CCH, yet they have not been 26 paid all wages due and are owed $2,640 in waiting time penalties. See id. at ¶ 62. Finally, the 27 FAC alleges that Defendants’ willfully failed to pay them their wages. See id. at ¶ 61. 28 Willfulness can be alleged generally. See Fed. R. Civ. P. 9(b); Reinhardt v. Gemini Motor 1 Transp., 879 F.Supp.2d 1138, 1142 (E.D. Cal. 2012); cf. Fuentes v. Maxim Healthcare Servs., 2 2018 U.S. Dist. LEXIS 226977, *16-*17 (C.D. Cal. Aug. 9, 2018) (holding similar allegations of 3 willfulness under § 203 were sufficient). These allegations are not unduly conclusory and they 4 support a plausible claim for wait time penalties.2 Therefore, dismissal of the fourth cause of 5 action is inappropriate. 6 3. Fifth Causes of Action – Rest Break Violations 7 California employers are mandated by law to afford non-exempt employees rest periods 8 during the day. Brinker Rest. Corp. v. Superior Ct., 53 Cal.4th 1004, 1018 (2012); see Cal. Lab. 9 Code § 226.7(b). Wage Order 14 requires that employers provide their agricultural employees 10 who work more than 3.5 hours per day with 10 minutes net rest time per 4 hours or major fraction 11 thereof. 8 C.C.C.R § 11140(12). A compliant rest period is one in which the employee is relieved 12 of all work duties and freed from employer control over how they spend their time. Augustus v. 13 ABM Security Servs., Inc., 2 Cal.5th 257, 270 (2016). If an employer forces an employee to miss 14 a rest break or fails to provide a legally compliant rest period, the employee is entitled to one hour 15 of regular pay for each missed or non-compliant rest period. See Cal. Lab. Code § 226.7(c); 16 Murphy v. Kenneth Cole Prods., Inc., 40 Cal.4th 1094, 1108 (2007). 17 Here, the FAC alleges that CCH violated Wage Order 14 by failing and refusing to permit 18 the class to take 10 minute rest periods every four hours or major fraction thereof. See FAC ¶ 67. 19 Instead, CCH would require the class to take as short a break as possible, typically lasting only a 20 few minutes, to go to the bathroom or other brief activity. See id. 21 The Court finds that the FAC adequately alleges a plausible claim. First, by expressly 22 alleging that CCH violated Wage Order 14 regarding rest breaks, it is reasonably inferred that the 23 class worked a sufficient number of hours so as to be entitled to at least one rest break. Second, 24 the FAC expressly describes a typical rest break as lasting only a few minutes, which combined 25 2 The Court notes that Mayen argues that CCH’s failure to reimburse the Class for travel and equipment expenditures 26 also supports the waiting time claim. However, Labor Code § 203 requires that an employer pay all “wages” that are owed either immediately upon termination or within 72 hours of a resignation. See Cal. Lab. Code § 203. Mayen 27 cites no authority for the proposition that owed reimbursements constitute “wages” for purposes of § 201, § 202, and § 203. However, since no party has raised the issue, it is sufficient for purposes of this motion to hold that there is at 28 least one plausible claim in the fourth cause of action, and that claim is based on CCH not paying for necessary and 1 with conduct that violated Wage Order 14, reasonably means that rest periods were well under 10 2 minutes. Third, the allegation expressly avers that CCH refused to authorize and permit 10 minute 3 rest periods. This can reasonably be read to allege a standing policy or practice against full 10 4 minute rest periods. That is, the allegation suggests that CCH had a policy or practice of never 5 providing full 10 minute rest breaks. 6 It is true that Mayen could provide more detail with respect to this claim as suggested by 7 CCH. However, the degree of detail urged by CCH is simply unnecessary and more akin to what 8 is required by Rule 9(b), not Rule 8(a). Cf. Cabrera v. South Valley Almond Co., 2021 U.S. Dist. 9 LEXIS 240875, *7 (E.D. Cal. Dec. 16, 2021) (noting that Landers should not be read as requiring 10 a pleading standard that resembles Rule 9). Paragraph 67 of the FAC is sufficient for the Court to 11 infer a standing policy against providing the Class with legally compliant rest periods because it 12 only permitted short breaks that typically lasted just a few minutes to use the restroom or the like.3 13 Cf. Hansber, 2021 U.S. Dist. LEXIS 192456 at *18-*19 (finding allegations that the employer’s 14 standing policies operated on employees in such a way as to prevent employees from have legally 15 compliant rest and meal periods); Harper v. Charter Communs., LLC, 2020 U.S. Dist. LEXIS 16 33054, *5-*6 (E.D. Cal. Feb. 25, 2020) (finding plausibly pled meal and rest break claims based 17 on allegations that employer did not provide breaks, implemented demanding schedules, had no 18 policies that designated rest periods, and discouraged employees from taking rest periods). 19 Therefore, dismissal of the fifth cause of action is inappropriate. See id. 20 4. Sixth Cause of Action – Meal Break Violations 21 California employers are mandated by law to afford non-exempt employees meal periods 22 during the day. Brinker, 53 Cal.4th at 1018; see Cal. Lab. Code § 512. Wage Order 14 prohibits 23 inter alia an employer from employing their agricultural employees for more than 5 hours without 24 providing at least one 30 minute meal period, unless not more than 6 hours will complete the day’s 25 work and the employer and employee agree to waive the meal period. See 8 C.C.C.R § 26 27 3 If the Court is not reading the allegation as intended by Mayen, then the amended complaint should include clarifying instructions that describes a typical work week in which non-confirming rest breaks were provided, e.g. a 28 description of shift start and ending times, times when breaks were due, how breaks were given, how long the breaks 1 11140(11)(A). An employer may require an on-duty meal period only if the nature of the work 2 prevents the employee from being relieved of all duties and the employer and employee agree in 3 writing to on-the-job paid meal periods. See id. Assuming that the six hour workday and the 4 agreed on-duty meal period exceptions do not apply, “employers fulfill their obligation to provide 5 meal periods to their employees when they relieve their employees of all duty, relinquish control 6 over their activities, and permit them a reasonable opportunity to take an uninterrupted 30-minute 7 break, and do not impede or discourage them from doing so.” Brinker, 53 Cal.4th at 1040; see 8 Rodriguez v. Taco Bell Corp., 896 F.3d 952, 956 (9th Cir. 2018). If an employer forces an 9 employee to miss a meal period or fails to provide a legally compliant meal period, the employee 10 is entitled to one hour of regular pay for each missed or non-compliant meal period. See Cal. Lab. 11 Code § 226.7(c); Murphy, 40 Cal.4th at 1108. 12 Here, the FAC alleges that CCH violated Wage Order 14 by failing to provide the Class 13 with the required 30 minute meal periods. See FAC ¶ 71. Instead, CCH required the Class to eat 14 as quickly as possible and to not leave the work area. See id. As a result, the typical meal break 15 was 10 minutes. See id. 16 The Court finds that the FAC adequately alleges a plausible claim. First, by expressly 17 alleging that CCH violated Wage Order 14 regarding meal breaks, it is reasonably inferred that the 18 class worked a sufficient number of hours so as to be entitled to at least one meal break. Second, 19 the FAC alleges that CCH failed to provide a 30 minute meal period and expressly describes a 20 typical meal break as lasting only about 10 minutes. This is substantially less than 30 minutes. 21 Third, CCH required the Class to eat as quickly as possible and prohibited the Class from leaving 22 the work area. This shows that the Class was impeded and discouraged from enjoying a legally 23 compliant 30 minute meal period. Finally, the allegation as a whole indicates a standing policy or 24 practice against providing 30 minute meal periods. That is, the allegation suggests that CCH had a 25 policy or practice of never providing full 30 minute meal breaks. 26 It is true that Mayen could provide more detail with respect to this claim as suggested by 27 CCH. Again, the degree of detail urged by CCH is simply unnecessary and more akin to what is 28 required by Rule 9(b), not Rule 8(a). Cf. Cabrera, 2021 U.S. Dist. LEXIS 240875 at *7. 1 Paragraph 71 of the FAC is sufficient for the Court to infer a standing policy against providing the 2 Class with legally compliant meal periods because it only permitted short breaks that typically 3 lasted 10 minutes and limited the employees to staying at their work area.4 Cf. Hansber, 2021 4 U.S. Dist. LEXIS 192456 at *18-*19 (finding allegations that the employer’s standing policies 5 operated on employees in such a way as to prevent employees from have legally compliant rest 6 and meal periods); Harper, 2020 U.S. Dist. LEXIS 33054 at *5-*6 (finding plausibly pled meal 7 and rest break claims based on allegations that employer did not provide breaks, implemented 8 demanding schedules, had no policies that designated rest periods, and discouraged employees 9 from taking rest periods). Therefore, dismissal of the sixth cause of action is inappropriate. 10 5. Seventh Cause of Action – Failure to Reimburse 11 California employers are mandated to indemnify their employees for all necessary 12 expenditures or losses incurred by the employee as a result of discharging their duties or following 13 their employer’s directions. See Cal. Lab. Code § 2802(a); Edwards v. Arthur Andersen LLP, 44 14 Cal.4th 937, 951 (2008). Further, Wage Order 14 requires employers to provide tools and 15 equipment, as well as protective equipment regulated by OSHA, to their agricultural employees. 16 See 8 C.C.C.R § 11140(9)(B). However, an employee whose wages are at least twice the 17 minimum wage provided by Wage Order 14 may be required to provide and maintain hand tools 18 and equipment that are customarily required by the trade/craft. See id. 19 Here, the FAC alleges that the Class was required to provide their own protective 20 equipment and hand tools, but CCH failed to reimburse the Class for the cost of these necessary 21 expenses. See FAC ¶¶ 75-76. CCH also failed to provide or reimburse the class for expenses 22 incurred in traveling between blocks or ranches. See id. at ¶ 77. The Class was required to pick 23 two or three different types of vegetable per day and, as a result, were required to change blocks or 24 ranches in the middle of the day. See id. at ¶ 36. This occurred as often as two to three times per 25 day, six days per week, and the travel time was generally between 10 and 15 minutes between 26 ranches/blocks. See id. CCH did not provide transportation when transfer between 27 28 4 If the Court is not reading the allegation as intended by Mayen, then the amended complaint should include 1 ranches/blocks was necessary, so the Class had to use their own vehicles. See id. This conduct 2 allegedly violated § 2802, Wage Order 14(9)(B), and 29 U.S.C. § 1832(c). See FAC ¶¶ 75, 77. 3 With respect to reimbursement relating to travel between fields, the Court finds a plausible 4 claim is stated. As described above, the FAC alleges how much travel time was involved between 5 farm blocks or ranches, why travel time was necessary, and how often such travel occurred in a 6 typical six day work week. The FAC also makes it clear that CCH provided no transportation and 7 did not reimburse the Class. The allegations, particularly those at Paragraph 36, are sufficient for 8 the Court to conclude that there are multiple instances in which CCH did not reimburse the Class 9 for travel expenses. Therefore, dismissal of reimbursement claims based on the Class’s “travel 10 expenditures” is inappropriate. 11 With respect to failing to reimburse the class for tools and protective equipment, the Court 12 finds that no plausible claim is stated. Unlike the allegations relating to travel expenditures, the 13 FAC contains few factual details. The FAC does not adequately identify any tools or protective 14 equipment are at issue, explain why the tools and protective equipment were necessary to the 15 performance of Mayen’s or any Class member’s job (or whether the protective equipment was 16 regulated by OSHA), or allege that CCH failed to provide any of the equipment at issue. Further, 17 the FAC does not give any examples of instance in which Mayen or any Class members were 18 required to purchase necessary equipment and were not reimbursed for their expenditures. Thus, 19 the allegations are too vague and conclusory for the Court to conclude that there were concrete 20 instances of CCH failing to reimburse the Class for the purchase of necessary equipment.5 See 21 Cabrera, 2021 U.S. Dist. LEXIS 240875 at *11. Dismissal with leave to amend of the 22 reimbursement claim based on the Class’s “equipment expenditures” is appropriate. See id. 23 6. Eighth Cause of Action – AWPA 24 In 29 U.S.C. §§ 1831 and 1832, AWPA sets out requirements and regulations regarding 25 the conditions of employment for seasonal agricultural workers. See Doe v. D.M. Camp & Sons, 26 624 F.Supp.2d 1153, 1166 (E.D. Cal. 2008). Section 1831(b) requires farm labor contractors to 27 5 The Court notes that CCH’s motion identifies more factual details that are not included the FAC regarding 28 reimbursement. Again, not all of the factual information identified by CCH is necessary to allege a plausible claim 1 post at the place of employment in a conspicuous place a poster provided by the Secretary of 2 Labor that sets forth rights and protections afforded by AWPA. See 29 U.S.C. § 1831(b); Fulford 3 v. Alligator River Farms, LLC, 858 F.Supp.2d 550, 555 (E.D. N.C. 2012). Section 1832(c) 4 prohibits a farm labor contractor from violating without justification the terms of any “working 5 arrangement made by the contractor . . . with any seasonal agricultural work.” 29 U.S.C. § 6 1832(c); D.M Camp, 624 F.Supp.2d at 1168. A “working arrangement” for purposes of § 1832(c) 7 is the terms of employment actually communicated either expressly or implicitly between an 8 employer and employee; it does not automatically encompass any and all statutes and regulations 9 governing agricultural employment. D.M. Camp, 624 F.Supp.2d at 1172. 10 With respect to the § 1831(b) posting claim, Mayen admits that he did not add any 11 additional facts or address the Court’s prior order that dismissed the original complaint’s § 12 1831(b) claim. Mayen explains that this was an inadvertent mistake and requests leave to amend. 13 Since the Court is dismissing other claims, and because Mayen admits that there was an 14 inadvertent pleading failure, the Court will dismiss this claim with leave to amend. 15 With respect to the § 1832(c) claim based on a working agreement that incorporated the 16 provisions of Labor Code § 226 (which requires that an employer provide employees with 17 itemized wage statements), the Court previously found that the original complaint did not 18 adequately explain how § 226 became a part of any “working agreement.” The FAC addresses the 19 dismissal order by alleging that CCH communicated to the Class that the Class would be provided 20 with an itemized wage statement that would identify the pay rate, hours worked, overtime 21 amounts, etc. See FAC ¶ 20. This new allegation comes close to adequately addressing the 22 Court’s concern, but it falls short. 23 The Court previously found that aspects of California law were communicated to the Class 24 as part of their “working arrangements” through the posting of Wage Order 14. Unfortunately, the 25 FAC does not state that Labor Code § 226 was somehow posted for the Class to see. More to the 26 point, the FAC does not explain how CCH actually communicated to Mayen or any Class member 27 that a § 226 compliant itemized wage statement would be provided as part the “working 28 arrangements.” At a minimum, Mayen should be able to allege how exactly CCH communicated 1 to him that § 226 would be part of their “working arrangement,” and that this experience was 2 identical to or substantially similar to the experience of the alleged Class. Without an explanation 3 of how § 226 was communicated to be part of the “working arrangements,” the FAC is too 4 conclusory and again fails to plausibly allege that § 226 was part of the “working arrangement” 5 between the Class and CCH. Therefore, dismissal is appropriate. Because Mayen has improved 6 his allegations regarding this claim, and because it is not clear that permitting further amendment 7 would be futile, dismissal will be without prejudice. 8 7. Ninth Cause of Action – UCL 9 The UCL broadly proscribes the use of any “unlawful, unfair or fraudulent business act or 10 practice.” Cal. Bus. & Prof. Code. § 17200; Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1177 (9th 11 Cir. 2016). “The UCL operates as a three-pronged statute: ‘Each of these three adjectives 12 [unlawful, unfair, or fraudulent] captures a 'separate and distinct theory of liability.’” Beaver, 816 13 F.3d at 1177 (citation omitted). The UCL’s “unlawful” prong “borrows violations of other laws . . 14 . and makes those unlawful practices actionable under the UCL,” and “virtually any law or 15 regulation — federal or state, statutory or common law — can serve as a predicate . . . .” 16 Candelore v. Tinder, Inc., 19 Cal.App.5th 1138, 1155 (2018). When the underlying legal claim 17 that supports a UCL cause fails, however, “so too will the [the] derivative UCL claim.” AMN 18 Healthcare, Inc. v. Aya Healthcare Services, Inc., 28 Cal.App.5th 923, 950 (2018). 19 Here, there is no dispute that the FAC’s UCL claim is based on “unlawful” conduct. UCL 20 claims based on “unlawful” conduct are derivative in nature. See id. To the extent that the Court 21 has dismissed any other claim in the FAC, that dismissed claim cannot serve as the basis of a UCL 22 claim. See id. Therefore, it is appropriate to dismiss all UCL claims that are based on other 23 dismissed causes of action. 24 With respect to waiting time penalties, CCH is correct that waiting time penalties under 25 Labor Code § 203 are not recoverable as restitution under the UCL. Pineda v. Bank of Am., N.A., 26 50 Cal.4th 1389, 1401-02 (2010). To the extent that the FAC attempts to recover waiting time 27 penalties as restitution under the UCL, dismissal with prejudice is appropriate. See id. 28 With respect to premium pay owed for meal and rest period violations (one hour of normal 1 wages), CCH’s argument that this pay cannot be recovered as restitution under the UCL because it 2 is a penalty is unsound. Recently, the California Supreme Court held that premium pay for a meal 3 or rest period violation is a wage and not a penalty. See Naranjo v. Spectrum Sec. Servs., Inc., 13 4 Cal.5th 93, 108, 117, 125 (2022). As a wage, meal and rest break premium pay is recoverable as 5 restitution through the UCL. See Pineda, 50 Cal.4th at 1401-02 (noting that, unlike unpaid wages 6 which are vested based on the employee performing work, waiting time penalties do not vest until 7 they are awarded by a relevant body and thus, cannot be recovered as restitution). Any contrary 8 authority, which is the basis of CCH’s argument in its motion, is inconsistent with Naranjo and 9 invalid.6 10 Finally, with respect to the argument that Mayen as a former employee cannot seek 11 prospective injunctive relief, Mayen does not address this argument. This Court has recognized 12 within the context of a putative class action that former employees lack standing to seek injunctive 13 relief to ensure their former employers comply with the California Labor Code. Howell v. 14 Leprino Foods Co., 2020 U.S. Dist. LEXIS 25515, *13 (E.D. Cal. Feb. 18, 2020); Perez v. 15 Leprino Foods Co., 2018 U.S. Dist. LEXIS 47698, *14-*15 (E.D. Cal. Mar. 22, 2018) (and cases 16 cited therein). In the absence of an opposition, the Court will dismiss Mayen’s demand for 17 injunctive relief due to a lack of standing. See id. 18 19 ORDER 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Defendant’s motion to dismiss (Doc. No. 34) is GRANTED in part; 22 2. The first cause of action, seventh cause of action based on “equipment expenditures,” the 23 eight cause of action based on violations of 29 U.S.C. § 1831(b) and 29 U.S.C. § 1832(c) 24 (but only to the extent that the violation is based on Labor Code § 226), and the claims in 25 26 6 The only authority cited by CCH in support of its argument is an unpublished 2017 decision from the Central District of California. Naranjo had not yet been decided by the time CCH filed its briefing. Nevertheless, years 27 before Naranjo was decided, this Court had taken the view that the premium pay for meal and rest break violations is a wage and not a penalty. E.g. Bates v. Leprino Foods Co., 2020 U.S. Dist. LEXIS 204511, *12 (E.D. Cal. Oct. 30, 28 2020); Finder v. Leprino Foods Co., 2015 U.S. Dist. LEXIS 30652, *12 (E.D. Cal. Mar. 12, 2015). CCH did not cite 1 the ninth cause of for injunctive relief and that are based on other dismissed causes of 2 action, are all DISMISSED; Defendant’s motion to dismiss is otherwise DENIED; Within twenty-eight (28) days of service of this order, Plaintiff may file an amended 5 complaint that is consistent with the analysis of this order; and 6 If Plaintiff fails to timely file an amended complaint, then leave to amend will be 7 automatically withdrawn without further notice and Defendant shall file an answer within 8 forty-two (42) days of service of this order. 9 10 IT IS SO ORDERED. □□ 11 Dated: _ August 19, 2022 ZS Cb □□ — SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10