Benyamin v. TopGolf Payroll Services, LLC ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 BOB B. BENYAMIN, individually No. 2:23-CV-00303-JAM-DB and on behalf of all others 10 similarly situated, 11 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 12 v. MOTION TO DISMISS 13 TOPGOLF PAYROLL SERVICES, LLC; TOPGOLF INTERNATIONAL, INC.; 14 TOPGOLF USA ROSEVILLE, LLC; and DOES 1 through 20, inclusive, 15 Defendants. 16 17 Plaintiff Bob B. Benyamin (“Plaintiff”) brings this putative 18 class action against his former employer, Defendants Topgolf 19 Payroll Services, LLC, Topgolf International, Inc., Topgolf USA 20 Roseville, LLC, and various fictitious persons (collectively 21 “Defendants”), for violating California’s labor laws. See First 22 Amended Compl. (“FAC”), ECF No. 11. Defendants move to dismiss 23 or, in the alternative, strike some of Plaintiff’s claims. See 24 Mot. to Dismiss (“Mot.”), ECF No. 13. Plaintiff opposed and 25 Defendants replied. See Opp’n, ECF No. 14; Reply, ECF No. 15.1 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for May 9, 2023. 1 I. BACKGROUND 2 Defendants employed Plaintiff from approximately August 2016 3 to May 2022. See FAC ¶ 9. Although Plaintiff states he 4 generally “worked [forty] hours per week, [five] days per week, 5 and [eight] hours per day” during his tenure with Defendants, he 6 provides few other details about his job. Id. Nonetheless, 7 Plaintiff contends Defendants violated several California wage 8 and hour laws by failing to: (1) pay minimum and overtime wages; 9 (2) provide meal periods; (3) permit rest breaks; (4) reimburse 10 business expenses; (5) furnish accurate itemized wage statements; 11 and (6) pay all wages due upon his employment’s termination. 12 Plaintiff also contends other employees incurred similar 13 treatment. See FAC ¶¶ 17-24(e). 14 As a result, Plaintiff filed a class action complaint 15 against Defendants in Placer County Superior Court seeking to 16 represent two employee classes. See Exh. A to Not. of Removal, 17 ECF No. 1. Defendants removed the case to this Court, alleging 18 jurisdiction under the Class Action Fairness Act of 2005. Id. at 19 2; 28 U.S.C. § 1332(d). Plaintiff then filed his first amended 20 complaint (“FAC”), containing the following eight claims: 21 1. Failure to pay minimum wages under California Labor 22 Code (“Labor Code”) sections 246, 1194, 1194.2, 1197, and 23 Industrial Welfare Commission (“IWC”) Order sections 3, 4, FAC 24 ¶¶ 36-42; 25 2. Failure to pay overtime wages under Labor Code sections 26 510, 1194, 1198, and IWC Order section 3, id. ¶¶ 43-54; 27 3. Failure to provide meal periods under Labor Code 28 sections 226.7, 512, and IWC Order section 11, id. ¶¶ 55-63; 1 4. Failure to permit rest breaks under Labor Code section 2 226.7 and IWC Order section 12, id. ¶¶ 64-70; 3 5. Failure to reimburse expenses under Labor Code sections 4 2800 and 2802, id. ¶¶ 71-78; 5 6. Failure to provide accurate itemized wage statements 6 under Labor Code section 226, id. ¶¶ 79-84; 7 7. Failure to pay all wages owed upon employment’s 8 termination under Labor Code sections 201, 202, 203, and 227.3, 9 id. ¶¶ 85-90; and 10 8. Violation of California’s Unfair Competition Law 11 (“UCL”), Cal. Bus. & Prof Code §§ 17200 et. seq.; id. ¶¶ 91-102. 12 Defendants move to dismiss the third, fourth, fifth, and 13 eighth claims under Rule 12(b)(6). See Mot. at 1. They also 14 move to dismiss or, in the alternative, strike all of Plaintiff’s 15 class claims, strike Plaintiff’s request for injunctive relief 16 and statutory penalties under the UCL, and strike Plaintiff’s 17 paid sick leave and vacation pay allegations. See id. 18 However, Rule 12(f), which governs motions to strike, is 19 meant to prevent unnecessary expenditures of time and money 20 arising from “spurious issues,” not to weigh legal claims. See 21 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th 22 Cir. 2010) (internal citation and quotations omitted). In turn, 23 given 12(f) and 12(b)(6) motions apply similar evidentiary 24 standards and district courts’ practice of converting the former 25 into the latter accordingly, this Court will treat Defendants’ 26 motion to strike as one to dismiss for failure to state a claim. 27 See Lingle v. Centimark Corp., No. 2:22-CV-01471-KJM-JDP, 2023 WL 28 2976376, at *2 (E.D. Cal. Apr. 17, 2023) (converting 12(f) motion 1 to 12(b)(6) motion because “motions to strike under Rule 12(f) 2 and motions to dismiss for failure to state a claim under Rule 3 12(b)(6) resemble one another as far as evidentiary standards and 4 proof are concerned. . . .”). 5 6 II. OPINION 7 A. Legal Standard 8 When weighing a motion to dismiss, courts “accept factual 9 allegations in the complaint as true and construe the pleadings 10 in the light most favorable to the nonmoving party.” Manzarek v. 11 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 12 2008). However, “a complaint must contain sufficient factual 13 matter, accepted as true, to ‘state a claim to relief that is 14 plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 15 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 16 1974 (2007)). Facial plausibility exists when “the plaintiff 17 pleads factual content that allows the court to draw the 18 reasonable inference that the defendant is liable for the 19 misconduct alleged.” Id. However, “a formulaic recitation of a 20 cause of action's elements will not do.” Twombly, 127 S. Ct. at 21 1965. Such statements are “legal conclusion[s] couched as 22 factual allegation[s]” that must be dismissed. Papasan v. 23 Allain, 106 S. Ct. 2932, 2944 (1986). 24 B. Analysis 25 1. Failure to Provide Meal and Rest Periods (Claims 26 Three and Four) 27 California law requires employers to provide employees with: 28 (1) a thirty-minute meal period for every five hours worked; and 1 (2) a ten-minute rest period for every four hours worked. See 2 Cal. Lab. Code § 512(a), IWC Wager Order § 12. Employers cannot 3 require employees to work through a meal or rest period. See 4 Cal. Lab. Code § 226.7(b). Furthermore, an employer must pay an 5 additional hour of pay for each workday that a meal period or 6 rest break is withheld. Id. 7 Plaintiff alleges Defendants failed to provide required meal 8 and break periods to him and class members. Regarding the 9 former, Plaintiff respectively “estimates,” FAC ¶ 29, and 10 asserts: 11 (1) “Defendants failed to provide him a timely [thirty]- 12 minute uninterrupted meal period once per month throughout 13 his employment,” id. ¶ 29; and 14 (2) “Plaintiff and [c]lass [m]embers did not receive 15 compliant meal periods for working more than five [] and ten 16 [] hours per day because their meal periods were missed, 17 late, short, interrupted, and/or they were not permitted to 18 take a second meal period.” Id. ¶ 60. 19 Regarding the latter, Plaintiff respectively “estimates,” id. 20 ¶ 30, and alleges: 21 (1) “Defendants failed to provide him a [ten]-minute, 22 uninterrupted rest period [eighty to ninety percent] of his 23 shifts throughout his employment,” id. ¶ 30; and 24 (2) “Plaintiff and class members did not receive a ten [] 25 minute rest period for every four [] hours or major fraction 26 thereof worked . . . because they were required to work 27 through their rest periods and/or were not authorized to 28 take their rest periods.” Id. ¶ 67. 1 Plaintiff attributes the withholding of these periods to 2 Defendants’ “policy and practice of applying extreme pressure to 3 Plaintiff and [c]lass [m]embers to meet service standards.” Id. 4 ¶ 29; see also id. ¶ 30. Plaintiff further suggest this policy 5 “made it difficult” to take meal or rest periods “because 6 Defendants failed to maintain adequate staffing levels to ensure 7 coverage” during such breaks. Id. ¶ 29; see also id.¶ 30. 8 Defendants, in response, argue Plaintiff fails to state a 9 viable claim because he does not: (1) identify a shift where he 10 worked enough hours to trigger entitlement to a meal or rest 11 break; (2) plead one occasion where he was impeded from taking a 12 required meal or rest break; and (3) provide factual allegations 13 describing Defendants’ actions preventing him from taking 14 complaint meal and rest periods. See Mot. at 3. The Court 15 agrees with Defendant. 16 Although Plaintiff “estimates,” FAC ¶ 29, Defendants 17 withheld a thirty-minute uninterrupted meal period once a month 18 during his employment, Plaintiff fails to plead he worked the 19 requisite hours requiring such breaks. For example, Plaintiff 20 does not point to one instance where he worked five or ten hours 21 and was then denied a meal period. Instead, Plaintiff only 22 alleges Defendants deprived him of “timely” and “compliant” meal 23 breaks. FAC ¶ 29, 60. The same is true of Plaintiff’s 24 allegations regarding rest periods. Again, Plaintiff’s FAC lacks 25 any factual allegations suggesting he worked more than four hours 26 without receiving a ten-minute break. In turn, Plaintiff’s 27 contentions are “legal conclusion[s] couched as factual 28 allegation[s]” that contravene the Ninth Circuit’s ruling in 1 Landers v. Quality Commc'ns, Inc., 771 F.3d 638 (9th Cir. 2014) 2 requiring Plaintiff to plead a specific instance where he was 3 denied a mandated meal or rest break despite working the 4 appropriate hours. See Guerrero v. Halliburton Energy Servs., 5 Inc., No. 1:16-CV-1300-LJO-JLT, 2016 WL 6494296, at *6 (E.D. Cal. 6 Nov. 2, 2016) (stating “[t]he requirement in Landers that a 7 plaintiff must plead a specific instance of alleged wage and hour 8 violations also applies to claims about missed meal and rest 9 periods.”). 10 The Court’s conclusion finds further support in the lack of 11 factual allegations regarding Defendants’ actions that stopped 12 Plaintiff from taking meal and rest periods. As this Court 13 previously stated, “failing to describe what an employer actually 14 told plaintiff or did to interfere with meal periods and rest 15 breaks[] results in allegations that are ‘factually lacking and 16 border on wholly conclusory.’” See Krauss v. Wal-Mart, Inc., No. 17 2:19-CV-00838-JAM-DB, 2019 WL 6170770, at *2 (E.D. Cal. 18 Nov. 20, 2019), quoting Chavez v. RSCR California, Inc., No. 19 2:18-CV-03137-JAM-AC, 2019 WL 1367812 at *3 (E.D. Cal. 20 Mar. 26, 2019). Here, Plaintiff simply alludes to a policy that 21 made taking meal or rest periods difficult—not prohibit their 22 occurrence entirely. See FAC ¶¶ 29, 30. Furthermore, Plaintiff 23 provides no details describing Defendants’ behavior or 24 instructions impeding him from taking complaint meal or rest 25 breaks. The Court therefore finds the FAC “fails to set forth 26 facts showing what types of controls or restrictions precluded 27 Plaintiff[] from taking meal and rest breaks.” Morrelli v. 28 Corizon Health, Inc., No. 1:18-CV-1395-LJO-SAB, 2018 WL 6201950, 1 at *3 (E.D. Cal. Nov. 28, 2018). Without such details, 2 Plaintiff’s allegations are nothing more than conclusory 3 statements that cannot withstand a 12(b)(6) motion. 4 Lastly, Plaintiff alleges Defendants maintained a policy of 5 putting the onus on Plaintiff and class members to inform 6 Defendants if a complaint meal or rest break was withheld. See 7 Opp’n at 3; see also FAC at ¶ 29. Plaintiff argues this policy 8 runs afoul of the California Supreme Court’s holding in Donohue 9 v. AMN Servs., LLC, 11 Cal. 5th 58, 74, 481 P.3d 661, 672 (2021), 10 where it determined “[i]f an employer's records show no meal 11 period for a given shift over five hours, a rebuttable 12 presumption arises that the employee was not relieved of duty and 13 no meal period was provided.” Plaintiff argues “he specifically 14 alleged [] Defendants maintained a written policy that unlawfully 15 placed the onus on employees to notify Defendants of noncompliant 16 meal periods when its records shows a noncompliant meal” and that 17 these allegations are “enough at the pleading stage.” Opp’n at 18 4. But the FAC lacks factual assertions suggesting Defendants’ 19 records indicate Plaintiff was deprived of a complaint meal 20 break. Plaintiff cannot overcome a motion to dismiss by relying 21 on facts absent from his complaint. See Karoun Dairies, Inc. v. 22 Karoun Dairies, Inc., No. 08CV1521–L WVG, 2010 WL 3633109, at *8 23 (S.D. Cal. Sept. 13, 2010) (“[W]hen ruling on a motion to 24 dismiss, [the court] must disregard facts that are not alleged on 25 the face of the complaint or contained in documents attached to 26 the complaint.”). His argument, as a result, is unavailing and 27 his claims must be dismissed in accordance with Rule 12(b)(6). 28 Because Plaintiff’s third and fourth claims are improperly 1 pled, but further amendment is not futile, they are DISMISSED 2 WITHOUT PREJUDICE. 3 2. Failure to Reimburse Business Expenses (Claim 4 Five) 5 California law requires employers to indemnify an employee 6 for all necessary expenditures or losses incurred in direct 7 consequence of an employee’s discharge of duties or obedience to 8 an employer’s directions. See Cal. Lab. Code § 2802(a). A 9 successful claim for a section 2802 violation alleges: “how or 10 when an employer failed to reimburse; the specific nature of the 11 business expense at issue; whether the employer knew such 12 expenses were incurred; and whether the employer willfully 13 refused to reimburse such expenses.” See Krauss, 2019 WL 14 6170770, at *5. Such meritorious claims also “provide a single 15 instance when such cost was actually incurred and not 16 reimbursed.” Chavez, 2019 WL 1367812 at *3. 17 Here, Plaintiff simply alleges Defendants required him and 18 “class members to use their personal cell phones for work 19 purposes but were not reimbursed by Defendants for these costs.” 20 See FAC ¶ 31. Defendants argue Plaintiff’s claim requires 21 dismissal because “he has not alleged any instance or work week 22 when he was required to use his phone to discharge his duties.” 23 See Mot. at 7. 24 The Court agrees with Defendants. Because Plaintiff only 25 generally charges Defendants required him and class members to 26 use their phones for work without pointing to an instance when 27 this actually occurred, his claim fails. Again, such accusations 28 are legal conclusions Plaintiff attempts to veil as factual 1 allegations, which this Court must dismiss. 2 Thus, for the foregoing reasons, Plaintiff’s fifth claim is 3 DISMISSED WITHOUT PREJUDICE 4 3. Failure to Pay All Wages Upon Separation of 5 Employment (Seventh Claim) 6 Plaintiff’s seventh cause of action alleges Defendants 7 failed to pay him all the wages he was due upon his employment’s 8 termination—including accumulated vacation pay under Labor Code 9 section 227.3. Defendants argue Plaintiff “failed to allege any 10 non-conclusory facts showing that he forfeited accrued unused 11 vacation.” Mot. at 15. Plaintiff, in response, contends his 12 vacation claim should survive because the FAC “implies vacation 13 wages are among the wages not paid upon termination of 14 employment.” Opp’n at 9. Plaintiff is wrong. 15 For such a claim to survive, Plaintiff “must plead the 16 existence and terms of a policy entitling them to the amount of 17 accrued vacation time alleged in their complaint to proceed with 18 this claim.” Andresen v. Int'l Paper Co., No. CV13-2079-CAS 19 AJWX, 2013 WL 2285338, at *3 (C.D. Cal. May 23, 2013). As 20 Defendants note, “Plaintiff does not allege that he qualified for 21 vacation pay, accrued it, and was denied it upon termination.” 22 Mot. at 15. Plaintiff therefore fails to sufficiently plead his 23 claims under section 227.3. 24 Accordingly, the Court DISMISSES this aspect of Plaintiff’s 25 seventh cause of action WITHOUT PREJUDICE. 26 4. UCL Claim (Eighth Claim) 27 The UCL prohibits “unlawful, unfair or fraudulent business 28 act[s] or practice[s].” See Cal. Bus. & Prof. Code § 17200. UCL 1 claims, as a result, can be based on state or federal law 2 violations and used to secure restitution or injunctive relief— 3 other remedies are unavailable. See Madrid v. Perot Sys. Corp., 4 130 Cal. App. 4th 440, 452 (2005) (“The UCL limits the remedies 5 available for UCL violations to restitution and injunctive 6 relief.”). However, a plaintiff must demonstrate he “lacks an 7 adequate remedy at law before securing equitable restitution for 8 past harm under the UCL. . . .” Sonner v. Premier Nutrition 9 Corp., 971 F.3d 834, 844 (9th Cir. 2020). If such a showing is 10 absent, the UCL claim cannot survive. 11 Here, Plaintiff predicates his UCL claim on the FAC’s first 12 seven causes of action. For these alleged infractions, he seeks 13 injunctive relief because “Plaintiff and class members are 14 subjected to ongoing injury/harm for which there is not adequate 15 remedy at law.” See FAC ¶ 99. He also asks for restitution 16 under California Labor Code section 246, which governs sick leave 17 pay. Defendants argues this Court must dismiss Plaintiff’s UCL 18 claim because Plaintiff: (1) fails to demonstrate he lacks an 19 adequate remedy at law; and (2) does not have a private right of 20 action under section 246. 21 With respect to Plaintiff’s request for injunctive relief, 22 the Court finds Plaintiff does not have standing to seek such a 23 remedy. Federal Courts are “required sua sponte to examine 24 jurisdictional issues such as standing.” B.C. v. Plumas Unified 25 Sch. Dist., 192 F.3d 1260, 1264 (9th Cir.1999); see also 26 Fed.R.Civ.P. 12(h)(3) (“Whenever it appears by suggestion of the 27 parties or otherwise that the court lacks jurisdiction of the 28 subject matter, the court shall dismiss the action.”). Former 1 employees—like Plaintiff—do not have standing to “seek 2 prospective injunctive relief on behalf of a putative class 3 containing both former and current employees,” Brum v. 4 MarketSource, Inc., No. 2:17-CV-241-JAM-EFB, 2017 WL 2633414, 5 at *6 (E.D. Cal. June 19, 2017), like the putative classes here. 6 Plaintiff therefore cannot use the UCL to enjoin Defendants’ 7 future employment practices. Given Plaintiff’s fixed status as 8 Defendants’ former employee, the Court finds amendment would be 9 futile and DISMISSES Plaintiff’s UCL claim for injunctive relief 10 with PREJUDICE. See Gompper v. VISX, Inc., 298 F.3d 893, 898 11 (9th Cir. 2002) (finding leave to amend need not be granted when 12 amendment would be futile). 13 As for Plaintiff’s request for restitution under section 14 246, the Court finds that Plaintiff has a private right of action 15 to pursue this avenue of relief. See Wood v. Kaiser Foundation 16 Hospitals, 88 Cal. App. 5th 742 (2023) (California Court of 17 Appeal held private plaintiffs can seek relief based on sick 18 leave violations under the UCL); see also Lingle, 2023 WL 19 2976376, at *6 (reading Wood to mean plaintiffs have a private 20 right of action to pursue relief under the UCL in relation to 21 sick leave violations). But the Court also finds that Plaintiff 22 has not properly alleged he lacks an adequate remedy at law to 23 make restitution under section 246 necessary. The Labor Code 24 outlines a specific enforcement mechanism to pursue such 25 allegations. See Cal. Lab. Code § 248.5. Plaintiff’s FAC fails 26 to address and explain why this mechanism is insufficient and 27 enforcement under the UCL preferable. 28 The Court therefore DISMISSES Plaintiff’s UCL claims for 1 restitution under section 246 WITHOUT PREJUDICE. 2 5. Class Allegations 3 Defendants ask the Court to dismiss Plaintiff’s class 4 claims. Defendants argue that Plaintiff “must allege facts that 5 would plausibly suggest that members of the putative class are 6 subjected to the same specific policies or has sufficiently 7 similar work experience. . . .” Mot. at 12. The crux of 8 Defendants’ argument, in other words, is that Plaintiff’s class 9 allegations regarding Rule 23’s commonality and typicality 10 requirements fall short of Iqbal’s and Twombly’s Rule 8 pleading 11 standards. See Mot. 12-14. Although Defendants cite cases where 12 class allegations are dismissed pursuant to Rule 12(b)(6), Rule 13 8’s mandate has not been held to control Rule 23 class 14 certification allegations by a binding authority on this Court. 15 Because Rule 8 and 23 operate independently, the Court finds “it 16 is incongruent to impose a Rule 8 pleading standard to the 17 elements of class certification such as commonality or 18 typicality.” Morrelli, 2019 WL 918210, at *13 (E.D. Cal. 19 Feb. 25, 2019). 20 The Court therefore DENIES Defendants’ motion to dismiss 21 Plaintiff’s class allegations. 22 23 III. ORDER 24 For the foregoing reasons, the Court construes the 25 Defendants’ motion to dismiss and to strike exclusively as a 26 motion to dismiss. The Court GRANTS in part and DENIES IN PART 27 Defendants’ motion to dismiss: 28 1. The Court DENIES Defendants’ motion to dismiss ee EIRENE IID EI IRI RO IRE IGE EIGER EO 1 Plaintiff’s class allegations. 2 2. The Court GRANTS WITH LEAVE TO AMEND Defendants’ motion 3 to dismiss Plaintiff’s third, fourth, and fifth claims. 4 3. The Court also GRANTS WITH LEAVE TO AMEND Plaintiff’s 5 section 227.3 claim for vacation pay under his seventh cause of 6 | action and section 246 restitution claim for sick leave pay under 7 || his eighth cause of action. 8 4. The Court GRANTS WITH PREJUDICE Defendants’ motion to 9 dismiss Plaintiff’s claims for injunctive relief under his eighth 10 cause of action pursuant to the UCL. 11 If Plaintiff elects to amend his complaint, he shall file a 12 Second Amended Complaint within twenty (20) days of this order. 13 Defendants’ responsive pleading is due twenty (20) days 14 thereafter. 15 IT IS SO ORDERED. 16 Dated: June 15, 2023 17 cp, JOHN A. MENDEZ 19 SENIOR UNITED*STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 14