Castanon v. WinCo Holdings, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ESMERALDA CASTANON and JOHN No. 2:20-cv-01656-MCE-JDP DURON, on behalf of themselves and 12 all others similarly situated, 13 Plaintiffs, MEMORANDUM AND ORDER 14 v. 15 WINCO HOLDINGS, INC., an Idaho Corporation, doing business as WINCO 16 FOODS; and DOES 1-10, inclusive, 17 Defendants. 18 19 Through the present class action proceeding, Plaintiff Esmeralda Castanon 20 (“Plaintiff”)1 challenges various wage and hour practices utilized by her employer, 21 Defendant Winco Holdings, Inc., doing business as Winco Foods (“Defendant” or 22 “Winco”), both on her own behalf and on behalf of others similarly situated. According to 23 Plaintiff, Winco has failed 1) to pay its employees all wages owed, including overtime; 24 2) to provide legally compliant meal and rest periods; and 3) to pay all wages due upon 25 separation. Plaintiff further alleges that wage statements provided by Winco have been 26 legally non-compliant. 27 1 While John Duron was initially named as a Plaintiff along with Ms. Castanon, Duron was 28 dismissed from this action by Stipulation and Order filed July 16, 2021 (ECF No. 21). 1 Winco previously moved to dismiss Plaintiff’s First Amended Complaint (“FAC”) 2 on grounds that because the allegations contained therein were generic and lacked 3 specificity, they failed to state any legally cognizable claim under Federal Rule of Civil 4 Procedure Rule 12(b)(6).2 That Motion, which also moved to strike, in accordance with 5 Rule 12(f), the FAC’s class action allegations as formulaic and conclusory, was granted 6 in part and denied in part on September 30, 2021. ECF No. 22. Because Plaintiff was 7 accorded leave to amend, a Second Amended Complaint (“SAC”) was filed on 8 October 20, 2021. ECF No. 25. Now before the Court is an additional Motion to 9 Dismiss, or Alternatively to Strike, on the same grounds. As set forth below, that motion 10 is DENIED, except with regard to a portion of the Fourth Cause of Action, which is 11 GRANTED.3 12 13 BACKGROUND4 14 15 Winco operates at multiple locations in California as a retailer providing 16 supermarket products to consumers. Plaintiff was employed as a non-exempt customer 17 service employee between 2001 and 2019 (her title was Loss Prevention Agent) at 18 Winco’s location in Chico, California. 19 Plaintiff alleges that she, as well as all other non-exempt Winco employees 20 working in California, were required to check in and out of their shifts by using an 21 electronic time clock that rounded total time worked each day to the nearest fifteen- 22 minute inverval. While minutes were rounded to the closest fifteen-minute period (with 23 an employee working seven minutes rounded down but eight or more minutes rounded 24 25 2 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless otherwise noted. 26 3 Having determined that oral argument will not be of material assistance, the Court ordered this Motion submitted on the briefs in accordance with E.D. Local Rule 230(g). 27 4 The allegations in this section are drawn, at times verbatim, from the allegations of Plaintiff’s 28 SAC, ECF No. 25. 1 up), according to the SAC, Winco’s time clock also calculated seconds and always 2 rounded down to the nearest minute. Plaintiff consequently alleges that even if she 3 worked 55 seconds of any given minute the time would always revert to the previous 4 minute. Therefore, if Plaintiff or any other class member worked for 8 hours, 7 minutes 5 and 55 seconds, their time would be rounded down to 8 hours, with the same dichotomy 6 occurring not only for time worked between 7 and 8 minutes, but also between 22 and 7 23 minutes, 37 and 38 minutes, and 52 and 53 minutes. See SAC, ¶ 21. 8 Plaintiff alleges that by always rounding total seconds down to the previous 9 minute in this matter, Winco’s rounding policy systematically undercompensates its 10 employees and is not neutral on its face. Moreover, citing her own personal experience, 11 Plaintiff alleges that 43 percent of her shifts over 8 hours fell between 8:01 and 8:07, 12 hours as opposed to only 5 percent falling between 8:08 and 8:14, making it far more 13 likely that her time was rounded down rather than up. Plaintiff further alleges that some 14 80 percent of her total shifts worked from May of 2019 to July of 2019 were rounded 15 down. Id. at ¶ 24. Moreover, during the same period, Plaintiff specifically asserts she 16 worked in excess of 8 hours a day or 40 hours a week during the weeks ending on May 17 4, 11, 18, 25, 2-10, June 1. 8, 15, 22, 29, 2019, and July 6, 2019, and therefore would 18 have been entitled to time and a half pay during those periods. Id. at ¶ 27. 19 In addition to impacting overtime pay, Plaintiff also alleges she was entitled to 20 double time (working in excess of 12 hours a day or eight hours on the seventh day of 21 the workweek) on the weeks ending on January 28, 2017, February 25, 2017, April 21, 22 2017, May 5 and 19, 2017, and December 15, 2018, among others. Id. at ¶ 29. 23 As an alternative to Plaintiff’s claim that because the rounding practices employed 24 by Winco were not neutral, she and other class members were deprived of the total 25 wages they were owed, Plaintiff further points to bonuses that were not included in her 26 regular rate of pay for purposes of calculating overtime. According to Plaintiff, the 27 bonuses, which were in the form of gift cards, were non-discretionary in nature because 28 the only requirement for entitlement was that an employee was hired before a certain 1 date, have hours worked in the bonus period and be actively employed at the time a 2 particular bonus was paid. Id. at ¶ 31. Therefore, Plaintiff contends, the amounts paid 3 should have been factored into any overtime calculation. She points to one specific 4 instance, where she was paid a bonus of $109.46 during the pay period from April 22, 5 2018 to May 5, 2018, for worked performed in the 26 weeks prior to March 3, 2018. 6 Plaintiff avers that the bonus was not calculated within her regular rate of pay and, 7 because she worked 23.75 day overtime hours, 14 night overtime hours, 1.5 day double 8 time hours, and 3 double time night hours during the pay period, should have been 9 included in calculating those amounts. Id. at ¶ 32. 10 Plaintiff goes on to claim that she and others were also not provided lawful meal 11 and rest breaks and were not compensated for breaks that were missed. Specifically, 12 she asserts she was not provided a meal period as required when working shifts in 13 excess of five days on three separate occasions between May 5, 2019, and July 5, 14 2019. Id. at ¶ 33. Plaintiff further asserts that on another 13 occasions between May 16, 15 2019, and July 3, 2019, the meal breaks she did receive were not the 30-minute 16 uninterrupted period mandated by law. Plaintiff appears to allege that these failures 17 were due at least in part to company personnel policies prohibiting employees from 18 leaving their retail store for meal and rest breaks “without permission from management.” 19 Id. at ¶ 35. According to Plaintiff, she and others were impeded and/or discouraged from 20 taking breaks when a manager was either unavailable or could not be readily located. 21 In addition to alleging that Winco failed to pay wages owed and further failed to 22 provide mandated meal and rest breaks, Plaintiff also alleges a failure on Winco’s part to 23 provide accurate, lawful itemized wage statements to both herself and other class 24 members because the correct rates of pay were not properly itemized. Id. at ¶ 47. On 25 the wage statement for the period from April 21, 2019, to May 5, 2019, for example, she 26 claims that the pay statement did not reflect the correct time and a half rate for the night 27 overtime she worked. In the same statement, Plaintiff also avers that the payroll codes 28 /// 1 used failed to itemize the total hours and rates of pay, making it impossible for her to 2 determine how overtime adjustments were calculated. Id. at ¶ 48. 3 Finally, when Winco terminated Plaintiff’s employment on July 15, 2019, rather 4 than paying her immediately for all wages due and unpaid as of that time, Plaintiff claims 5 that she was underpaid due to all the factors discussed above, including improper 6 rounding, and unpaid meal and rest period premiums occasioned by Winco’s failure to 7 provide legally compliant breaks. Id. at ¶ 51. 8 9 STANDARD 10 11 A. Motion to Dismiss under Rule 12(b)(6) 12 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 13 Procedure 12(b)(6), all allegations of material fact must be accepted as true and 14 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 15 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain 16 statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the 17 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 18 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 19 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 20 detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of 21 his entitlement to relief requires more than labels and conclusions, and a formulaic 22 recitation of the elements of a cause of action will not do.” Id. (internal citations and 23 quotations omitted). A court is not required to accept as true a “legal conclusion 24 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 25 Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief 26 above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & 27 Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the 28 /// 1 pleading must contain something more than “a statement of facts that merely creates a 2 suspicion [of] a legally cognizable right of action”)). 3 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 4 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 5 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 6 to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of 7 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing Wright & 8 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to 9 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their 10 claims across the line from conceivable to plausible, their complaint must be dismissed.” 11 Id. However, “a well-pleaded complaint may proceed even if it strikes a savvy judge that 12 actual proof of those facts is improbable, and ‘that a recovery is very remote and 13 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 14 A court granting a motion to dismiss a complaint must then decide whether to 15 grant leave to amend. Leave to amend should be “freely given” where there is no 16 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 17 to the opposing party by virtue of allowance of the amendment, [or] futility of [the] 18 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 19 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 20 be considered when deciding whether to grant leave to amend). Not all of these factors 21 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 22 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 23 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 24 “the complaint could not be saved by any amendment.” Intri-Plex Techs., Inc. v. Crest 25 Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 26 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th 27 Cir. 1989) (“Leave need not be granted where the amendment of the complaint . . . 28 constitutes an exercise in futility . . . .”)). 1 B. Motion to Strike Under Rule 12(f) 2 The Court may strike “from any pleading any insufficient defense or any 3 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he 4 function of a 12(f) motion to strike is to avoid the expenditure of time and money that 5 must arise from litigating spurious issues by dispensing with those issues prior to 6 trial . . . .” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). 7 Immaterial matter is that which has no essential or important relationship to the claim for 8 relief or the defenses being pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th 9 Cir. 1993), rev’d on other grounds 510 U.S. 517 (1994) (internal citations and quotations 10 omitted). Impertinent matter consists of statements that do not pertain, and are not 11 necessary, to the issues in question. Id. 12 13 ANALYSIS 14 15 A. First Cause of Action for Failure to Pay Wages, Including Overtime 16 Plaintiff’s previously operative pleading, the FAC, generically alleged that Winco 17 failed to pay overtime and double time wages as authorized by law. While Plaintiff 18 claimed that Winco’s time clocks tracked non-exempt employee’s hours in a manner that 19 “improperly rounded” time and therefore deprived employees of their entitlement to 20 properly calculated wages, Plaintiff offered no explanation as to how such rounding was 21 employed in favor of Winco’s interests as opposed to those of its employees, and 22 therefore was not neutral. Instead, Plaintiff alleged only that she worked in excess of 40 23 hours during eight different weeks between May 4, 2019, and July 6, 2019, without 24 providing any further detail. 25 In granting Winco’s initial motion to dismiss as to the First Cause of Action, the 26 Court found these cursory allegations did not meet the minimum pleading requirements 27 for a wage and hour case as set forth in Landers v. Quality Commc’ns, Inc., 771 F.3d 28 638 (9th Cir. 2014). In Landers, the Ninth Circuit made it clear that to pass pleading 1 muster in such a case “detail regarding a given workweek,” including the length of the 2 average week, the amount of overtime wages believed to be owed, and other facts “that 3 will permit the court to find plausibility” must be provided. Id. at 645, 646. 4 In now moving to dismiss Plaintiff’s subsequently filed SAC, Winco argues that 5 Plaintiff has still not pled a cause of action that meets Landers’ directive. The Court 6 disagrees. Unlike its predecessor, the SAC plausibly alleges how the rounding practices 7 employed by Winco, in always rounding seconds down to the previous minute as set 8 forth above, impermissibly favors Winco when rounding to the nearest 15-minute interval 9 in certain circumstances. Although the Ninth Circuit has approved, in Corbin v. Time 10 Warner Entertainment-Advance/Newhouse Partnership, 821 F.3d 1069, 1075. 1076 11 (9th Cir. 2016), rounding practices as long as said practices are neutral, Plaintiff has 12 adequately demonstrated, at least for pleading purposes, that Winco’s practices in 13 rounding seconds down to the nearest minute is not always neutral. Even if the 14 detriment from such rounding is minor, the California Supreme Court has held that a “de 15 minimis” defense does not apply to California employers. Troester v. Starbucks, 16 5 Cal. 5th 829, 842 (2018). 17 Plaintiff goes on to allege that these rounding practices impacted her directly. 18 According to the SAC, between May 2016 and July 2019, approximately 80 percent of 19 her shifts between 8 and 9 hours were rounded down, resulting in a net underpayment, 20 particularly since 43 percent of her shifts over 8 hours were between 8:01 and 8:07 21 hours, as opposed to only 5 percent between 8:08 and 8:14 hours. SAC, ¶ 24. 22 While Winco claims that even in the face of these allegations, Plaintiff has to 23 provide more precise details concerning the length of her average shifts and workweek 24 as well as the amount of wages she believes is owed, the Court believes that what she 25 has provided is sufficient. As Winco itself concedes, the salient issue is in fact whether 26 Plaintiff has alleged facts that permit the Court to draw reasonable inferences suggestive 27 of a claim entitling Plaintiff to relief (see Mot., ECF No. 28-1, 3:26-27), and the Court 28 concludes that the new rounding allegations meet that prerequisite. 1 In addition to augmenting her factual allegations concerning the potential bias of 2 Winco’s rounding policies, Plaintiff has also added new allegations pertaining to Winco’s 3 payment of “gift card” bonuses that, because they apply to all employees working during 4 the bonus period who are still employed at the time a bonus is distributed, are non- 5 discretionary in nature and consequently should have been included in their regular rate 6 of pay but were not. SAC, ¶ 31. The Court again disagrees with Winco’s assertion that 7 these allegations are not stated with the requisite detail, since Plaintiff alleges that she 8 received bonuses in the form of such gift cards and goes on to cite a specific example 9 where the value of the git card was not included within her regular rate of pay. Id. at 10 ¶ 32. 11 Given the new averments contained in the SAC, the Court concludes that the First 12 Cause of Action, for failing to pay proper wages, survives Winco’s pleading challenge for 13 failure to state a claim. 14 B. Second and Third Causes of Action for Meal and Rest Period Violations 15 16 Plaintiff previously alleged, in her FAC, that class members were “regularly 17 required to work shifts in excess of five hours without being provided a lawful meal 18 period and over ten-hour days without being provided a second lawful meal period as 19 required by law. FAC, ¶ 30. She also further alleges they “were systematically not 20 authorized to take one net ten-minute paid, rest period for every four hours worked” as 21 also legally mandated. Id. at ¶ 39. Finally, she goes on to claim, on information and 22 belief and without further detail, that “Class Members were impeded and/or discouraged 23 from leaving the store for meal and/or rest breaks.” Id. at ¶ 31. 24 The Court found these conclusory allegations devoid of supporting factual 25 allegations and consequently lacking for pleading purposes. In her SAC, however, 26 Plaintiff provides further detail. She alleges that Winco’s Company Personnel Policies 27 specifically provide that “[r]etail employees are not permitted to leave the store interior on 28 a rest break without permission from management.” SAC, ¶ 35. Plaintiff claims this 1 policy applies to both rest and meal breaks. Id. As a result, if manager is unavailable or 2 cannot be readily located, Winco employees may be “impeded and/or discouraged” from 3 taking meal and rest breaks. Id. at ¶ 36. 4 According to Plaintiff, because Winco thus fails to relinquish all control over its 5 employees during legally mandated breaks, its practices violate California law as 6 articulated in Brinker Restaurant Corp v. Superior Court, 53 Cal. 4th 1004 (2012) and 7 Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257 (2016). Id. at ¶ 37. While the 8 California Supreme Court, in Augustus, noted that particularly with a short break period 9 “one would expect that employees will ordinarily have to remain on site or nearby” (id. at 10 269-70), here Plaintiffs allege written personnel policies that prohibit an employee from 11 even leaving the inside of a store without management approval. On its face, such a 12 policy would prohibit even a short walk outside or a smoke break. 13 These allegations are sufficient to state a viable cause of action. 14 C. Fourth Cause of Action for Failure to Timely Pay Wages Owed Upon Separation 15 16 Plaintiff’s Fourth Cause of Action, which seeks waiting time penalties based on 17 Winco’s alleged failure to timely pay wages owed upon separation, purports to be based 18 upon the requirements of California Labor Code §§ 201 and 202, which provide that 19 wages must be paid within a certain time following an employee’s separation from 20 service. The two statutes, however, involve different circumstances: Section 201 21 requires that in the event an employee is discharged by his or her employer, the wages 22 earned and unpaid at the time of discharge are due and payable immediately. 23 Section 202, on the other hand, gives the employer 72 hours to do so if it is the 24 employee who quits. 25 The Court previously dismissed this claim because the FAC contains no facts 26 about just how Plaintiff separated from employment, indicating only that her last day at 27 work was July 15, 2019. FAC, ¶ 19. Consequently, the court could not determine on 28 /// 1 what basis Plaintiff sought to hold Winco liable, let alone ascertain what final wages were 2 owed and not paid. 3 Now, in the SAC, Plaintiff avers that her employment with Winco was involuntarily 4 terminated on July 15, 2019, and, given that termination, she was immediately entitled to 5 all wages earned and unpaid upon her discharge. She claims that those wages included 6 unpaid straight and overtime caused by improper rounding, as well as unpaid wages 7 occasioned by Winco’s failure to properly calculate her regular rate of paid (by way of 8 bonuses, for instance), and all premiums due because of missed and/or interrupted meal 9 and rest period. See SAC, ¶¶ 51-52.5 10 Although the Court believes these allegations suffice for purposes of alleging a 11 claim premised on Section 201, they do not state a claim for a Section 202 violation, and 12 Plaintiff cannot be a class representative for an injury she did not experience and has no 13 standing to assert. Consequently, Winco’s Motion is GRANTED to the extent the Fourth 14 Cause of Action asserts a claim premised on Section 202 but is otherwise denied.6 15 D. Fifth Cause of Action for Failure to Comply with Itemized Wage Statements 16 17 In the Fifth Cause of Action of her FAC, Plaintiff alleged that Winco failed to 18 comply with the items required to be included in her wage statement under California 19 law, including time records, meal periods, split shift intervals, and total daily hours 20 worked. She failed to identify, however, even a single deficient wage statement. 21 Although the Court rejected those allegations given their lack of any factual 22 specificity, in the SAC Plaintiff has alleged at least one wage statement with overtime 23 adjustment codes that failed to itemize the total hours and rates of pay, making it 24 impossible for her to determine how the adjustments were calculated. SAC, ¶ 48. 25 5 In Naranjo v. Spectrum Security Services, Inc., 13 Cal. 5th 93 (2022), the California Supreme Court recently held that failure to pay premiums for violating the California Labor Code’s meal and rest 26 break provisions constitutes ”wages” for purposes of waiting time penalties. Id. at 107-08. 27 6 Plaintiff seeks leave to amend to add an additional named plaintiff who can properly represent former Winco employees who quit rather than, like Plaintiff Castanon, were terminated. Leave to amend 28 on that basis will be accorded. 1 Moreover, to the extent that Plaintiff’s Fifth Cause of Action is derivative of the unpaid 2 wages/overtime and non-compliant meal and rest period claims already discussed 3 above, which the Court deemed sufficient to withstand a motion to dismiss, the Fifth 4 Cause of Action is adequately pled on that ground as well. 5 E. Sixth Cause of Action for Unfair Business Practices 6 Plaintiff’s Unfair Business Practices claim under California Business and 7 Professions Code §§ 17200, et seq., as set forth in the Sixth Cause of Action, is explicitly 8 predicated upon the validity of Plaintiff’s other state law claims. As a derivative claim, it 9 rises and falls on the viability of those claims which the Court has already rejected. See, 10 e.g., Lefevre v. Pac. Bell Directory, No. 14-cv-03803-WHO, 2014 WL 5810530 at *4 11 (N.D. Cal. Nov. 7, 2014) (dismissing derivative § 17200 because underlying wage/hour 12 claims failed to satisfy minimum pleading requirements). Because, as stated above, 13 Plaintiff has now identified viable claims that can serve as the factual predicate for her 14 unfair business practices cause of action, her § 17200 claim also passes pleadings 15 muster. 16 F. Class Action Allegations 17 In addition to moving to dismiss Plaintiff’s substantive claims as discussed above, 18 Winco reiterates its previous request, as already rejected in its challenge to the FAC, to 19 strike Plaintiff’s class allegations as impermissibly “formulaic and conclusory” because 20 they state only that the requirements for class certification have been satisfied, with no 21 real factual basis for such an assertion. While conceding that courts generally refrain 22 from ruling on the issue of class certification at the pleadings stage, Winco nonetheless 23 claims that Plaintiff has not pled enough facts to show any entitlement to relief on a 24 class-wide basis. 25 As the Court already remarked in previously rejecting Winco’s earlier challenge to 26 Plaintiff’s class allegations, the weight of authority holds that class action allegations 27 should not be tested at the pleadings stage, and instead should be addressed only after 28 one party has filed a motion for class certification, unless it is clear from the complaint 1 | that no class claims can be maintained See, e.g., Brown v. Hain Celestial Group, Inc., 2 | 913 F. Supp. 2d 881, 887 (N.D. Cal. 2012). Here, because Plaintiff has identified 3 | allegations that may potentially apply on a class-wide basis, the Court cannot say at the 4 | onset that class action treatment is unwarranted. Moreover, while Winco cites several 5 | unpublished decisions that have dismissed class action allegations at the pleadings 6 | stage, such action is still rare in advance of a class certification motion. See 7 | Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1245-46 (C.D. Cal. 8 | 2011). 9 10 CONCLUSION 11 12 For all the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 28) is 13 | DENIED, except with respect to the Fourth Cause of Action, which is GRANTED to the 14 || extent said cause of action asserts a claim under California Labor Code Section 202. 15 | Plaintiff may, but is not required to, file an amended pleading properly asserting a 16 | Section 202 claim not later than twenty (20) days after the date this Memorandum and 17 | Order is electronically filed. If no amended complaint is timely filed, the claims dismissed 18 | by virtue of this Memorandum and Order will be deemed dismissed with prejudice upon 19 | no further notice to the parties. 20 IT IS SO ORDERED. 21 | Dated: August 23, 2022 22 J Lat LEK ee NK 3 SENIOR UNITED STATES DISTRICT JUDGE 24 25 26 27 28 13