Lopez v. West Coast Arborists, Inc. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JESSIE LOPEZ, on behalf of No. 2:23-cv-02734 WBS DB himself and all others similarly 13 situated, and the general public, 14 MEMORANDUM AND ORDER RE: Plaintiff, DEFENDANT’S MOTION TO DISMISS 15 v. 16 WEST COAST ARBORISTS, INC., a 17 California corporation; and DOES 1 through 50, inclusive, 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiff Jessie Lopez brought this putative labor 22 class action against his employer West Coast Arborists, Inc., a 23 tree and landscape maintenance company, in Sacramento Superior 24 Court. Defendant removed to federal court. Plaintiff alleges 25 multiple violations of the California Labor Code, including (1) 26 failure to provide meal periods, Cal. Lab. Code §§ 226.7, 512; 27 (2) failure to provide rest periods, id. § 226.7; (3) failure to 28 1 pay hourly wages and overtime, id. §§ 223, 510; (4) failure to 2 provide accurate written wage statements, id. § 226; (5) failure 3 to timely pay all final wages, id. §§ 201-03; (6) failure to 4 indemnify, id. § 2802; and (7) unfair competition, Cal. Bus. & 5 Prof. Code § 17200. (Compl. (Docket No. 1 at 13-35).) 6 Defendant moves to dismiss the action in its entirety. 7 (Docket No. 6.) A hearing on the motion was held on January 22, 8 2024. At that hearing, the court and the parties discussed the 9 submission of additional briefs. Upon further reflection, the 10 court concludes that it would not be assisted by any additional 11 briefing on the issues raised by the motion, nor does the court 12 choose to consider any issues not raised by the parties (Docket 13 Nos. 6, 10, 14-16). Because defense counsel emphasized at oral 14 argument that defendants are seeking neither to compel 15 arbitration nor to dismiss the action based on the collective 16 bargaining agreement’s waiver of a judicial forum, and explicitly 17 represented that the only issue to be decided on this motion is 18 LMRA preemption, the court will decide the motion solely on that 19 ground. The motion is accordingly taken under submission without 20 further need for oral argument. 21 I. Judicial Notice 22 Though a court generally may not consider material 23 outside the complaint on a motion to dismiss, the court may look 24 beyond the pleadings at “matters of which a court may take 25 judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 26 551 U.S. 308, 322 (2007). Under Federal Rule of Evidence 201, a 27 court may take judicial notice of an adjudicative fact that is 28 “not subject to reasonable dispute because it: (1) is generally 1 known within the trial court’s territorial jurisdiction; or (2) 2 can be accurately and readily determined from sources whose 3 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 4 Defendant requests that the court take judicial notice 5 of the collective-bargaining agreement (“CBA”) applicable to 6 plaintiff. Along with its notice of removal, defendant provided 7 a declaration stating that plaintiff was subject to the CBA, 8 along with multiple documents specifically referencing 9 plaintiff’s union membership. (See Docket No. 1-2.) Plaintiff 10 argues that defendant has failed to make an initial showing that 11 the CBA applies to plaintiff. However, plaintiff does not 12 dispute the veracity of defendant’s declaration or supporting 13 documentation, does not allege that plaintiff was not subject to 14 the CBA, and does not dispute the accuracy of the copy of the CBA 15 provided by defendant. 16 “It is often necessary to consider the contents of a 17 CBA to decide a motion to dismiss based on an argument of 18 complete preemption, which is considered an ‘independent 19 corollary to the well-pleaded complaint rule.’” Patrick v. Nat’l 20 Football League, No. 23-cv-1069 DMG SHK, 2023 WL 6162672, at *3 21 (C.D. Cal. Sept. 21, 2023) (quoting Caterpillar Inc. v. Williams, 22 482 U.S. 386, 393 (1987)). See also Hall v. Live Nation 23 Worldwide, Inc., 146 F. Supp. 3d 1187, 1192–93 (C.D. Cal. 2015) 24 (quoting Parrino v. FFIP, Inc., 146 F.3d 699, 704 (9th Cir. 25 1998)) (taking judicial notice of CBA “‘because complete 26 preemption often applies to complaints drawn to evade federal 27 jurisdiction,’” and therefore “‘the court may look beyond the 28 face of the complaint to determine whether the claims alleged as 1 state law causes of action in fact are necessarily federal 2 claims’”) (alterations adopted). 3 The court therefore takes judicial notice of Exhibit 2 4 to defendant’s Request for Judicial Notice (Docket No. 6-2 at 29- 5 54) (“CBA”)) and Exhibits 3-5 concerning subsequent wage 6 increases under the CBA (Docket No. 6-2 at 55-65 (“Wage Increase 7 Documents”)). 8 The court also takes judicial notice of the State of 9 California Department of Industrial Relations information page 10 concerning the California minimum wage, located at 11 https://www.dir.ca.gov/dlse/faq_minimumwage.htm (“Minimum Wage 12 Webpage”). This document was retrieved from a State of 13 California official website and is therefore a matter of public 14 record not subject to reasonable dispute. See Khoja v. Orexigen 15 Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018); Gerritsen 16 v. Warner Bros. Ent. Inc., 112 F. Supp. 3d 1011, 1033 (C.D. Cal. 17 2015).1 18 II. Discussion 19 Section 301 of the LMRA provides federal question 20 jurisdiction over “suits for violation of contracts between an 21 employer and a labor organization.” 29 U.S.C. § 185(a). “[T]he 22 Supreme Court has interpreted [section 301] to compel the 23 complete preemption of state law claims brought to enforce 24 collective bargaining agreements.” Valles v. Ivy Hill Corp., 410 25 F.3d 1071, 1075 (9th Cir. 2005) (citing Avco Corp. v. Aero Lodge 26 27 1 Notice of California minimum wage rates is necessary for resolution of the motion. Defendant referenced the minimum 28 wage rates but did not formally request judicial notice of them. 1 No. 735, Int’l Ass’n of Machinists & Aerospace Workers, 390 U.S. 2 557, 560 (1968)). 3 Whether a claim is preempted by the LMRA is a two-step 4 inquiry. First, a court must determine whether the asserted 5 claim involves a right which “exists solely as a result of the 6 CBA” or “by virtue of state law.” Kobold v. Good Samaritan Reg’l 7 Med. Ctr., 832 F.3d 1024, 1032 (9th Cir. 2016) (internal 8 quotation marks omitted). If the right exists solely because of 9 the CBA, then the state law claim is preempted. Id. If the 10 right exists independently of the CBA, then the court must move 11 to the second step, “asking whether the right is nevertheless 12 substantially dependent on analysis of a [CBA].” Id. (internal 13 quotation marks omitted). If it is, then the state law claim is 14 preempted. 15 “[T]he conclusion that § 301 precludes adjudication of 16 a state law claim in whole or part does not automatically require 17 dismissal of a union-represented employee’s challenge of an 18 employer’s actions.” Kobold, 832 F.3d at 1036. However, 19 “[p]rior to bringing suit, an employee seeking to vindicate 20 personal rights under a collective bargaining agreement must 21 first attempt to exhaust any mandatory or exclusive grievance 22 procedures provided in the agreement.” Soremekun v. Thrifty 23 Payless, Inc., 509 F.3d 978, 985–86 (9th Cir. 2007). Therefore, 24 once a state law claim has been found preempted, “that claim must 25 either be [1] treated as a § 301 claim, or [2] dismissed” if the 26 employee failed to exhaust the CBA’s “mandatory grievance 27 procedure” and there is no applicable exception to the exhaustion 28 requirement. See Kobold, 832 F.3d at 1034, 1036, 1041. 1 The court will first address whether each claim is 2 preempted, then consider whether the exhaustion requirement is 3 satisfied. If a claim is preempted and has not been exhausted, 4 it will be dismissed unless plaintiff demonstrates that he is 5 excused from exhausting the CBA’s remedies. See id. 6 A. Third Claim2 7 Plaintiff’s third claim alleges that defendant failed 8 to pay overtime wages in violation of California Labor Code § 510 9 and minimum wages in violation of California Labor Code § 223. 10 Defendant argues that the overtime claim, but not the minimum 11 wage claim, is preempted. (See Reply (Docket No. 14) at 4 12 (“Defendant does not contend that the claim for unpaid minimum 13 wages is preempted by the LMRA.”). 14 Section 510 provides that the “requirements of this 15 section do not apply to the payment of overtime compensation to 16 an employee working pursuant to . . . [a]n alternative workweek 17 schedule adopted pursuant to a collective bargaining agreement 18 pursuant to Section 514.” Cal. Lab. Code § 510(a)(2). Section 19 514 states that “[s]ections 510 and 511 do not apply to an 20 employee covered by a valid collective bargaining agreement if 21 the agreement expressly provides for the wages, hours of work, 22 and working conditions of the employees, and if the agreement 23 provides premium wage rates for all overtime hours worked and a 24 regular hourly rate of pay for those employees of not less than 25 30 percent more than the state minimum wage.” Id. § 514. “By 26 27 2 The court begins with the third claim because it involves discussion of the Curtis case, which provides a helpful 28 foundation for analysis of the other claims. 1 its terms, therefore . . . section 510 does not apply to an 2 employee who is subject to a qualifying CBA.” Curtis v. Irwin 3 Indus., Inc., 913 F.3d 1146, 1153-54 (9th Cir. 2019). 4 As explained by the Ninth Circuit in Curtis, if the 5 applicable CBA “meet[s] the requirements of section 514, [the 6 employee’s] right to overtime exists solely as a result of the 7 CBA, and therefore is preempted under § 301.” Id. at 1154 8 (internal quotation marks omitted). The CBA here plainly meets 9 these requirements, which plaintiff does not appear to dispute. 10 (See CBA Art. 12-16 (providing wage and hour policies, 11 descriptions of job duties and various working conditions, 12 overtime premiums for all employees, and a 2019 starting minimum 13 wage rate ranging from $17.10 to $25.10); Wage Increase Documents 14 (providing for annual wage increases of $0.80 or more); Minimum 15 Wage Webpage (stating that California’s minimum wage for 16 employers with 26 employees or more was $12 in 2019 and increased 17 to $15.50 by 2023).) 18 Accordingly, the court concludes that plaintiff’s third 19 claim, only insofar as it is brought under § 510, is completely 20 preempted by the LMRA. See Curtis, 913 F.3d at 1154. The court 21 does not address whether the third claim as brought under § 223 22 is preempted, as defendant does not argue that it is. 23 B. First Claim 24 Plaintiff’s first claim alleges that defendant failed 25 to provide meal periods in violation of California Labor Code §§ 26 512 and 226.7. 27 Section 512’s protections do not extend to certain 28 employees, including those in construction occupations, who are 1 covered by a valid collective bargaining agreement that 2 “expressly provides for the wages, hours of work, and working 3 conditions of employees, and expressly provides for meal periods 4 for those employees, final and binding arbitration of disputes 5 concerning application of its meal period provisions, premium 6 wage rates for all overtime hours worked, and a regular hourly 7 rate of pay of not less than 30 percent more than the state 8 minimum wage rate.” See Cal. Lab. Code § 512(e)-(f). 9 Defendant states that plaintiff was engaged in a 10 construction occupation, which plaintiff does not appear to 11 dispute. See Cal. Bus. & Prof. Code § 7026.1(a)(4) (an 12 individual who “performs tree removal, tree pruning, stump 13 removal, or engages in tree or limb cabling or guying” qualifies 14 as a construction contractor). The CBA here plainly meets the 15 requirements to qualify for section 512’s exception, which 16 plaintiff also does not appear to dispute. (See CBA Art. 12-16 17 (providing wage and hour policies, descriptions of job duties and 18 various working conditions, overtime premiums for all employees, 19 meal periods for all employees, final and binding arbitration of 20 disputes concerning application of meal period provisions, and a 21 2019 starting minimum wage rate ranging from $17.10 to $25.10); 22 Wage Increase Documents (providing for annual wage increases of 23 $0.80 or more); Minimum Wage Webpage (stating that California’s 24 minimum wage for employers with 26 employees or more was $12 in 25 2019 and increased to $15.50 by 2023).) Plaintiff is therefore 26 exempt from section 512. See Cal. Lab. Code § 512(e)-(f). 27 As discussed above, the Ninth Circuit in Curtis held 28 that because section 514 excludes employees who are subject to a 1 qualifying CBA from the protections of section 510, claims under 2 section 510 are completely preempted when there is a qualifying 3 CBA. See 913 F.3d 1154. Curtis did not address whether claims 4 subject to section 512’s CBA exception are completely preempted. 5 However, “both sections 512 and 514 have nearly identical 6 exemptions that make the rights they confer negotiable.” 7 Radcliff v. San Diego Gas & Elec. Co., 519 F. Supp. 3d 743, 751– 8 52 (S.D. Cal. 2021). The court therefore “sees no reason why 9 Curtis should not be extended to preempt meal period claims made 10 by an employee who falls within the exemption set forth in 11 section 512(e).” See id. 12 In line with this conclusion, the Ninth Circuit has 13 extended Curtis’s logic to section 512’s CBA exemption in an 14 unpublished memorandum decision. See Marquez v. Toll Glob. 15 Forwarding, 804 F. App’x 679, 680 (9th Cir. 2020). Multiple 16 district courts have similarly applied Curtis to section 512. 17 See, e.g., Radcliff, 519 F. Supp. 3d at 751-52; Rodriguez v. USF 18 Reddaway Inc., No. 2:22-cv-00210 TLN DB, 2022 WL 18012518, at *4 19 (E.D. Cal. Dec. 30, 2022); Jimenez v. Young’s Mkt. Co., LLC, No. 20 21-cv-02410 EMC, 2021 WL 5999082, at *11 (N.D. Cal. Dec. 20, 21 2021); Schwanke v. Minim Prods., Inc., No. 2:21-cv-00111 SVW JPR, 22 2021 WL 4924772, at *2 (C.D. Cal. May 24, 2021); Blackwell v. 23 Com. Refrigeration Specialists, Inc., No. 2:20-cv-01968 KJM CKD, 24 2021 WL 2634501, at *5 (E.D. Cal. June 25, 2021); Parker v. 25 Cherne Contracting Corp., No. 18-CV-01912-HSG, 2019 WL 359989, at 26 *4 (N.D. Cal. Jan. 29, 2019). The court agrees with this line of 27 cases and therefore concludes that plaintiff’s first claim as 28 brought under section 512 is completely preempted by the LMRA. 1 Plaintiff also asserts his meal period claim under 2 section 226.7, which “shall not apply to an employee who is 3 exempt from meal or rest or recovery period requirements pursuant 4 to other state laws, including, but not limited to, a statute or 5 regulation, standard, or order of the Industrial Welfare 6 Commission.” See Cal. Lab. Code § 226.7(e). Because the 7 underlying statute providing for meal periods, section 512, does 8 not apply to plaintiff, section 226.7 likewise does not apply. 9 See id. Thus, for the same reasons provided in Curtis, and as 10 several district courts have similarly concluded, the claim as 11 brought under section 226.7 is completely preempted as well. 12 See, e.g., Plagakis v. Outsource Util. Contractor Corp., No. 13 1:23-cv-00798 CDB, 2023 WL 8602161, at *5 (E.D. Cal. Dec. 12, 14 2023) (“[e]xemptions under Labor Code § 512(e)(2) and § 226.7 15 operate in a similar manner to section 514 as discussed in 16 Curtis” in that “where the exclusions operate, any right an 17 employee . . . may have to the associated benefits would arise 18 under the CBA, and, thus, fail the first prong of the 19 [preemption] test”); Giles v. Canus Corp., No. 22-cv-03097-MMC, 20 2022 WL 3370793, at *5 (N.D. Cal. Aug. 16, 2022) (“where an 21 employee is exempt under section 512, such employee likewise is 22 exempt under section 226.7,” and their claim under section 226.7 23 is therefore preempted); Jones v. Sysco Ventura Inc., No. 2:21- 24 cv-04116 SVW AGR, 2021 WL 6104193, at *8 n.9 (C.D. Cal. Sept. 1, 25 2021) (§ 226.7 “does not apply to employees who are exempt from 26 meal period requirements under other state laws, which would 27 include the § 512(e) exemption,” and therefore plaintiff’s claim 28 under § 226.7 is preempted due to the applicability of the § 1 512(e) exemption); Jimenez, 2021 WL 5999082, at *11; Schwanke, 2 2021 WL 4924772, at *6. 3 The court therefore concludes that plaintiff’s first 4 claim for meal periods is completely preempted by the LMRA. 5 C. Second Claim 6 Plaintiff’s second claim alleges that defendant failed 7 to provide rest periods in violation of California Labor Code § 8 226.7, which provides that “[a]n employer shall not require an 9 employee to work during a meal or rest or recovery period 10 mandated pursuant to an applicable statute, or applicable 11 regulation, standard, or order of the Industrial Welfare 12 Commission . . . .” Cal. Lab. Code § 226.7(b) (emphasis added). 13 As stated above, this section “shall not apply to an employee who 14 is exempt from meal or rest or recovery period requirements 15 pursuant to other state laws, including . . . [an] order of the 16 Industrial Welfare Commission.” See id. § 226.7(e). 17 Defendant states that California Industrial Welfare 18 Commission Wage Order 16-2001, which covers construction 19 occupations, applies to plaintiff because he was engaged in a 20 construction occupation. Plaintiff does not appear to dispute 21 that he was in a construction occupation or that this Wage Order 22 applies. 23 The Wage Order provides, in relevant part, that “rest 24 periods shall be in employer designated areas and shall be ten 25 (10) minutes per every four (4) hours or a major fraction 26 thereof.” 8 Cal. Code Regs. § 11160.11(A). “If an employer 27 fails to provide an employee a rest period in accordance with the 28 applicable provisions of this Order, the employer shall pay the 1 employee one (1) hour of pay at the employee’s regular rate of 2 compensation for each work day that the rest period was not 3 provided.” Id. § 11160.11(D). 4 The rest provisions of the Wage Order “shall not apply 5 to any employee covered by a valid collective bargaining 6 agreement if the collective bargaining agreement provides 7 equivalent protection.” Id. § 11160(11)(E). 8 The CBA here provides equivalent protection to the Wage 9 Order. (See CBA Art. 12(D)(1) (providing rest periods of ten 10 minutes per every four hours); id. Art. 12(D)(4) (providing for 11 one hour’s worth of pay when an employer fails to provide a rest 12 period as required by the CBA).) Plaintiff is therefore exempt 13 from the applicable Wage Order. See 8 Cal. Code Regs. § 14 11160.11(E). 15 Because the underlying Wage Order providing for rest 16 periods does not apply to plaintiff, section 226.7 likewise does 17 not apply. See Cal. Lab. Code § 226.7(e). Thus, for the same 18 reasons provided in Curtis, and as several district courts have 19 similarly concluded, plaintiff’s second claim for rest periods 20 under section 226.7 is completely preempted by the LMRA due to 21 the applicability of the Wage Order’s CBA exemption. See, e.g., 22 Rodriguez v. Gonsalves & Santucci, Inc., No. 21-cv-07874-LB, 2022 23 WL 161892, at *4 (N.D. Cal. Jan. 18, 2022) (“The wage provisions 24 in the CBA are nearly identical to those in [Wage Order 16]. 25 Thus, the plaintiff’s right to rest periods is conveyed solely by 26 the CBA.”); Parker, 2019 WL 359989, at *4 (where CBA satisfied 27 the conditions of Wage Order 16, claim under section 226.7 based 28 on Wage Order was preempted); cf. Mendoza v. W. Water Features, 1 Inc., No. 2:23-cv-01923 KJM JDP, 2023 WL 8477962, at *4 (E.D. 2 Cal. Dec. 7, 2023) (because CBA did not provide equivalent 3 protections to Wage Order 16, the Wage Order applied to plaintiff 4 and therefore the claim under section 226.7 relying upon the Wage 5 Order was not preempted); Sykes v. F.D. Thomas, Inc., No. 20-cv- 6 03616-VC, 2021 WL 343960, at *2 (N.D. Cal. Feb. 2, 2021) (same). 7 The court therefore concludes that plaintiff’s second 8 claim for rest periods is completely preempted by the LMRA. 9 D. Sixth Claim 10 Plaintiff’s sixth claim alleges that defendant failed 11 to indemnify the expenses associated with employee uniforms, in 12 violation of California Labor Code § 2802. 13 The court first examines whether the claim involves a 14 right which “exists solely as a result of the CBA” or “by virtue 15 of state law.” See Kobold, 832 F.3d at 1032. For the first step 16 of the preemption inquiry, “a court must focus its inquiry on the 17 legal character of a claim . . . and not whether a grievance 18 [under the CBA] arising from precisely the same set of facts 19 could be pursued.” Id. at 1033 (quoting Caterpillar, 482 U.S. at 20 394) (emphasis in original). “Only if the claim is ‘founded 21 directly on rights created by a collective-bargaining agreement’ 22 does § 301 preempt it.” Id. (quoting Livadas v. Bradshaw, 512 23 U.S. 107, 123 (1994)). 24 The sixth claim is based on plaintiff’s rights under 25 the California Labor Code. Specifically, the sixth claim alleges 26 that defendant failed to indemnify expenses in violation of 27 California Labor Code § 216. This claim clearly does not arise 28 directly from the CBA, but rather from the California Labor Code. 1 And “‘the mere existence of a CBA does not compel preemption of 2 plaintiff’s state law . . . claims.’” See McGinty v. Holt of 3 Cal., No. 2:22-cv-00865 WBS AC, 2022 WL 3226130, at *2 (E.D. Cal. 4 Aug. 10, 2022) (quoting Miller v. Bimbo Bakeries USA, Inc., No. 5 11-cv-00378 WHA, 2011 WL 1362171, at *3 (N.D. Cal. Apr. 11, 6 2011)) (alterations adopted). The court therefore turns to the 7 second step of the inquiry. 8 “[T]o determine whether a state [statutory claim] is 9 ‘substantially dependent’ on the terms of a CBA” under the second 10 step of the test, a court must “decide whether the claim can be 11 resolved by looking to versus interpreting the CBA.” Burnside v. 12 Kiewit Pac. Corp., 491 F.3d 1053, 1060 (9th Cir. 2007). A state 13 statutory claim that requires “interpreting” a CBA is said to be 14 “substantially dependent” on the CBA, and thus preempted by LMRA 15 section 301. Id. A state statutory claim that merely requires 16 “looking to” a CBA, on the other hand, is said not to be 17 “substantially dependent” on the CBA, and thus is not preempted 18 by the LMRA. Id. “At this second step of the analysis, claims 19 are only preempted to the extent there is an active dispute over 20 the meaning of contract terms.” Curtis, 913 F.3d at 1153 21 (internal quotation marks omitted). 22 Defendant does not detail what interpretation of -- 23 rather than mere reference to -– the CBA would be required to 24 resolve the sixth claim. Rather, defendant merely points out 25 that the CBA has a provision requiring it to pay for employee 26 uniforms. There is no indication that there are any “questions 27 about the scope, meaning, or application of” any contract term. 28 See Livadas, 512 U.S. at 125. 1 The court therefore concludes that plaintiff’s sixth 2 claim is not preempted by the LMRA. See Corral-Bey v. Fluor 3 Flatiron Balfour Beatty Dragados DBJV, No. 2:22-cv-06903 MEM 4 FPVC, 2023 WL 6129480, at *5–8 (C.D. Cal. Sept. 18, 2023) (claim 5 under § 2802 not preempted where defendant did not show that the 6 claim required interpreting, rather than merely looking to, terms 7 of CBA). 8 E. Fourth, Fifth, & Seventh Claims 9 The fourth claim for inaccurate wage statements under 10 California Labor Code § 226 and the fifth claim for failure to 11 timely pay all final wages under California Labor Code §§ 201-203 12 are derivative of, inter alia, the third claim for failure to 13 provide minimum wages. (See Compl. ¶ 84.) Because the court 14 does not find that the third claim for minimum wages is 15 preempted, the derivative fourth and fifth claims are likewise 16 not preempted insofar as they are founded upon that violation. 17 See Plagakis, 2023 WL 8602161, at *7 (“where a court finds a 18 claim preempted by section 301 of the LMRA . . . derivative state 19 law claims likewise would be . . . preempted to the same extent 20 for the same reason”). 21 The seventh claim for unfair competition under 22 California Business & Professions Code § 17200 is derivative of, 23 inter alia, the third and sixth claims. (See Compl. ¶ 107.) 24 Because the third claim for minimum wages and sixth claim for 25 failure to indemnify are not preempted, the seventh claim is not 26 preempted insofar as it is founded upon those violations. See 27 Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 28 4th 163 (1999) (section 17200 “borrows violations of other laws 1 and treats them as unlawful practices that the unfair competition 2 law makes independently actionable”); Plagakis, 2023 WL 8602161, 3 at *7. 4 F. Exhaustion Requirement 5 As stated above, a claim preempted by section 301 of 6 the LMRA should be dismissed if brought by an employee who failed 7 to exhaust the applicable CBA’s mandatory grievance procedure, 8 unless the employee can show that they are excused from 9 exhausting the CBA’s remedies. See Kobold, 832 F.3d at 1034, 10 1036, 1041. 11 Here, the CBA provides for mandatory arbitration of all 12 claims under the CBA. (See CBA Art. 7(A)-(B) (“The grievance and 13 arbitration procedures set forth in this Agreement shall be the 14 exclusive means for the disposition of all grievances . . . 15 concerning the interpretation, application or violation of any 16 provision of this Agreement.”).) 17 Article 7 of the CBA requires that grievances 18 “concerning the interpretation, application or violation” of the 19 CBA be filed within fifteen days. (CBA Art. 7(B)-(C).) 20 Plaintiff argues that this limitation is unconscionable and 21 unenforceable because it “effectively shorten[s] the statute [of] 22 limitations from three years to 15 days,” and is therefore 23 unconscionable under California law. (Opp’n at 7.) However, “it 24 is firmly established that federal substantive law[, not 25 California law,] governs the validity and enforcement of 26 contracts under the LMRA,” including “arbitration provisions.” 27 See Dryer v. Los Angeles Rams, 40 Cal. 3d 406, 411 (1985) 28 (declining to undertake unconscionability analysis under 1 California law with respect to the “fairness of the arbitration 2 machinery”); see also Cramer v. Consol. Freightways Inc., 255 3 F.3d 683, 689 (9th Cir. 2001), as amended (Aug. 27, 2001) 4 (“federal common law preempts the use of state contract law in 5 CBA interpretation and enforcement”). Courts analyzing the 6 fairness of arbitration provisions in CBAs “may look to state law 7 for guidance, but only if it effectuates the policies underlying 8 federal labor legislation.” Dryer, 40 Cal. 3d at 411. 9 Even assuming arguendo that state law contract defenses 10 are applicable here, California law requires that both 11 “procedural” and “substantive” unconscionability be established 12 in order to find a contract provision unconscionable. See 13 Armendariz v. Found. Health Psychcare Servs., 24 Cal. 4th 83, 114 14 (2000). “A procedural unconscionability analysis begins with an 15 inquiry into whether the contract is one of adhesion.” Id. at 16 126. “A substantive unconscionability analysis examines the 17 fairness of a contract’s terms.” Id. at 129. Plaintiff’s 18 argument addresses the substantive fairness of the CBA. However, 19 plaintiff made no argument and provides no allegations concerning 20 the agreement’s procedural unfairness. To the contrary, the 21 Ninth Circuit has held that in the context of CBAs, “[w]hen the 22 parties have agreed upon a particular method of dispute 23 resolution, it should generally be presumed fair,” see Sheet 24 Metal Workers Int’l Ass’n, Loc. No. 162 v. Jason Mfg., Inc., 900 25 F.2d 1392, 1398 (9th Cir. 1990), because “parties to a collective 26 bargaining agreement are conclusively presumed to have equal 27 bargaining strength,” Waggoner v. Dallaire, 649 F.2d 1362, 1367 28 (9th Cir. 1981). Plaintiff’s failure to address procedural ene ne I I NE IE OS OE IEE OSI ID eae 1 unconscionability alone warrants rejection of his argument that 2 the grievance procedures are unconscionable. 3 There are several established exceptions to the LMRA’s 4 exhaustion requirement. See Glover v. St. Louis-San Francisco 5 Ry. Co., 393 U.S. 324, 330 (1969). However, plaintiff has not 6 raised any of them here. 7 Because plaintiff has not pled that he exhausted the 8 CBA’s grievance procedures, the court will dismiss the first and 9 second claims in their entirety, and the third claim only insofar 10 as it seeks overtime wages under § 510, which are completely 11 preempted by the LMRA. The court will not dismiss plaintiff’s 12 other claims, which are not preempted. 13 IT IS THEREFORE ORDERED that defendant’s motion to 14 dismiss (Docket No. 6) be, and the same hereby is, GRANTED IN 15 PART as to plaintiff’s first claim for meal periods pursuant to 16 Cal. Lab. Code §§ 226.7, 512; second claim for rest periods 17 pursuant to Cal. Lab. Code § 226.7; and third claim only insofar 18 as it seeks overtime wages pursuant to Cal. Lab. Code § 510, 19 which are hereby DISMISSED. The motion is DENIED in all other 20 respects. 21 Plaintiff is given twenty days from the date of this 22 Order to file an amended complaint if he can do so consistent 23 | with this Order. Jed ie 2 24 | Dated: February 1, 2024 eh a Vi (hn 55 UNITED STATES DISTRICT JUDGE 26 27 28 18