Reyes v. Five Diamond Cold Storage, Inc. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SARA REYES, Case No. 1:24-cv-00028-JLT-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING 13 v. DEFENDANTS’ MOTION TO DISMISS WITH LEAVE TO AMEND 14 FIVE DIAMOND COLD STORAGE, INC., et al. (ECF No. 12, 13, 14, 22, 23, 24) 15 Defendants. OBJECTIONS DUE WITHIN FOURTEEN 16 DAYS 17 I. 18 INTRODUCTION 19 On April 9, 2024, Defendants Five Diamond Cold Storage, Inc., Grow Smart Labor, Inc., 20 Pedro Arellano-Moya, and Jorge Esteban Fuentes filed a motion to dismiss Plaintiff Sara Reyes’ 21 first amended complaint pursuant to Rules 8 and 12(b)(6) of the Federal Rules of Civil 22 Procedure. The Court finds this matter suitable for decision without oral argument. See Local 23 Rule 230(g). Based on the moving, opposition, and reply papers, and the Court’s record, the 24 Court recommends granting Defendants’ motion to dismiss with leave to amend. 25 / / / 26 / / / 27 / / / 1 II. 2 BACKGROUND 3 Sara Reyes (“Plaintiff”) alleges she has been employed directly or jointly by Defendants 4 Grow Smart Labor, Inc. (“Grow Smart”), Five Diamond Cold Storage, Inc. (“Five Diamond”), 5 Pedro Arellano-Moya, and Jorge Esteban Fuentes (collectively “Defendants”) as a non-exempt 6 employee on land owned, leased, and/or operated by Defendants in and around Tulare County, 7 California. (First Amended Complaint (“FAC”), ECF No. 7, ¶ 10.) Plaintiff alleges that “during 8 the relevant time period,” she worked for Defendants performing services covered by an 9 applicable Wage Order. (Id.) 10 Five Diamond and Grow Smart are California corporations that conduct business in 11 Tulare County. (FAC ¶¶ 13, 14.) They have hundreds of employees, and each provide 12 employees to the agricultural industry. (Id.) Defendant Arellano-Moya is the Chief Executive 13 Officer of Grow Smart and was in charge of making major corporate decisions and managing 14 operations. (FAC ¶ 15.) Defendant Fuentes is the Chief Financial Officer of Grow Smart and 15 oversaw making major corporate decisions and managing operations. (FAC ¶ 16.) 16 Plaintiff filed this class action on January 5, 2024, bringing claims for (1) violations of 17 the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”); (2) failure to record 18 and pay non-productive time separate from piece-rate compensation; (3) failure to provide meal 19 periods; (4) failure to pay minimum wages; (5) failure to pay overtime premium wages; (6) 20 waiting time penalties; (7) failure to provide accurate itemized wage statements; (8) violations 21 of the California Unfair Competition Law (“UCL”); and (9) PAGA penalties. (ECF No. 1.) 22 On March 26, 2024, Plaintiff filed the operative FAC which brought the same causes of 23 action but attached two exhibits establishing that she provided notice of her intent to seek PAGA 24 penalties to the Labor and Workforce Development Agency. (See FAC.) 25 On April 9, 2024, Defendants filed the instant motion to dismiss the FAC in its entirety. 26 (Defs.’ Mem. P. & A. Supp. Mot. Dismiss (“Mot.”), ECF No. 13.) Defendants filed a 27 declaration by counsel in support of the motion. (Declaration of Landon Schwob Supp. Defs.’ 1 support of the motion. (Defs.’ Req. Jud. Not. (“RJN”), ECF No. 14.) Following a stipulation to 2 modify the briefing schedule (ECF Nos. 20, 21), Plaintiff filed her opposition on April 30, 2024. 3 (Pl’s Opp’n Mot. (“Opp’n”), ECF No. 22.) On May 17, 2024, Defendants filed their reply 4 (Defs.’ Reply Opp’n (“Reply”), ECF No. 23), and a request for judicial notice in support of the 5 reply (Defs.’ Req. Jud. Not. Supp. Reply (“Reply RJN”), ECF No. 24). 6 III. 7 LEGAL STANDARD 8 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on 9 the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A 10 motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro 11 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a motion to dismiss, “[a]ll allegations 12 of material fact are taken as true and construed in the light most favorable to the nonmoving 13 party.” Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The pleading 14 standard under Rule 8 does not require “ ‘detailed factual allegations,’ but it demands more than 15 an unadorned, the-defendant-unlawfully harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 16 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In 17 assessing the sufficiency of a complaint, all well-pleaded factual allegations must be accepted as 18 true. Iqbal, 556 U.S. at 678-79. However, “[t]hreadbare recitals of the elements of a cause of 19 action, supported by mere conclusory statements, do not suffice.” Id. at 678. To avoid a 20 dismissal under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that 21 is plausible on its face.” Twombly, 550 U.S. at 570. 22 In deciding whether a complaint states a claim, the Ninth Circuit has found that two 23 principles apply. First, to be entitled to the presumption of truth the allegations in the complaint 24 “may not simply recite the elements of a cause of action but must contain sufficient allegations 25 of underlying facts to give fair notice and to enable the opposing party to defend itself 26 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Second, so that it is not unfair 27 to require the defendant to be subjected to the expenses associated with discovery and continued 1 suggest an entitlement to relief. Id. “Dismissal is proper only where there is no cognizable legal 2 theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro, 3 250 F.3d at 732 (citing Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988)). 4 IV. 5 DISCUSSION 6 A. Judicial Notice 7 In conjunction with the motion, Defendants request that the Court take judicial notice of 8 three complaints filed by counsel for Plaintiff on behalf of different plaintiffs against different 9 defendants in separate actions in this district.1 (RJN 2; Schwob Decl. 97-203). Plaintiff does not 10 oppose the request. 11 In conjunction with its reply brief, Defendants request that the Court take judicial notice 12 of (1) Industrial Welfare Commission wage order 14-2001 (Reply RJN 2, 4-15), and (2) a first 13 amended complaint filed by different plaintiffs against different defendants in a separate action 14 in another district, McKeen v. Franklin American Mortgage Company, No. 4:10-cv-05243-SBA 15 (N.D. Cal. Jan. 12, 2011) (Reply RJN 16-35). Plaintiff does not oppose the requests. 16 Further, Defendants filed a declaration by counsel in support of their motion which 17 proffers (1) the parties’ meet and confer efforts; (2) a redline version of the original complaint in 18 this matter showing the changes made by Plaintiff to the FAC; and (3) “true and correct copies of 19 redlines” showing changes of the three other complaints filed by counsel for Plaintiff in separate 20 actions with separate parties. (See ECF No. 12-1 at 5-96; 204-460.) Plaintiff does not object to 21 Defendants’ proffered declaration or attached exhibits. 22 “As a general rule, ‘a district court may not consider any material beyond the pleadings in 23 ruling on a Rule 12(b)(6) motion.’ ” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 24 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)). Doing so would convert a 25 motion to dismiss into a motion for summary judgment. Fed. R. Civ. P. 12(d). However, a court 26 27 1 Ortiz v. Lucero AG Services, Inc., No. 1:23-cv-01319-JLT-EPG (E.D. Cal. Sept. 5, 2023), ECF No. 1; Nataren v. Central Valley Farming, Inc., No. 2:24-cv-00747-DAD-DB (E.D. Cal. Mar. 8, 2024); Gonzalez 1 may take judicial notice of a fact not subject to reasonable dispute, either because the fact is 2 generally known within the territorial jurisdiction of the trial court or because the fact is capable 3 of accurate and ready determination from sources whose accuracy cannot reasonably be 4 questioned. Fed. R. Evid. 201(b). Courts may also take judicial notice of undisputed matters of 5 public record, Lee, 250 F.3d at 689, including documents filed in federal or state courts. Harris 6 v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). 7 Defendants argue the complaint in the instant action recites legal conclusions that were 8 copied and pasted from three other complaints filed by Plaintiff’s law firm. (Mot. 7.)2 9 Defendants further argue the McKeen complaint is an example of a plaintiff alleging “specific 10 examples where she worked more than forty hours per week but did not receive overtime 11 compensation.” (Reply 6.) While the Court may take judicial notice of the four complaints filed 12 in federal court, the Court finds they have no bearing on the determination of the instant motion. 13 It is of no consequence for purposes of deciding the instant motion that Plaintiff’s counsel has 14 filed similar complaints in separate actions or that another plaintiff has alleged factual content to 15 support her individual claims. Because the four complaints are not relevant to the instant 16 motion, the Court recommends denying Defendants’ request for judicial notice.3 17 The Court recommends granting judicial notice of California Industrial Welfare 18 Commission Wage Order 14–2001, which is available on the State of California Department of 19 Industrial Relations website. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 978 n.2 (9th Cir. 20 2007) (taking judicial notice of government-published documents). 21 B. Violations of AWPA 22 Plaintiff’s first cause of action arises out of Grow Smart and Five Diamond’s alleged 23 violations of AWPA. (FAC ¶¶ 46-50.) The purpose of the AWPA is “to remove the restraints 24 2 All references to pagination of specific documents pertain to those as indicated on the upper right corners 25 via the CM/ECF electronic court docketing system. 3 To the extent Defendants request judicial notice of the “true and correct copies of redlines showing the changes from the Complaint in this action against the Ortiz, Nataren, and Mondragon complaints” (Schwob Decl. ¶ 26 7, Exs. 7-9) or the redlined version of the complaint filed in this action on January 5, 2024 and the FAC at issue (Schwob Decl. ¶ 4, Ex. 2), the Court recommends denying such requests. It does not appear the redlined documents 27 are matters of public record nor otherwise judicially noticeable in accordance with Rule 201. The Court did not— and cannot pursuant to Rule 12(d)—rely on the declaration or redlined documents in issuing these findings and 1 on commerce caused by activities detrimental to migrant and seasonal agricultural workers ... 2 and to assure necessary protections for migrant and seasonal agricultural workers, agricultural 3 associations, and agricultural employers.” 29 U.S.C. § 1801. “AWPA allows seasonal and 4 migrant agricultural employees to bring suit in federal court if employers fail to pay them wages 5 owed or violate a working arrangement.” Valenzuela v. Giumarra Vineyards Corp., 614 F. Supp. 6 2d 1089, 1092 (E.D. Cal. 2009). 7 The FAC alleges that at “all relevant times,” Plaintiff has been “employed directly or 8 jointly by Defendants, as an employee on land owned, leased, and/or operated in and around 9 Tulare County.” (FAC ¶ 10.) Defendants note—and Plaintiff does not dispute—the FAC fails to 10 plead any facts about Plaintiff’s employment, including her job title, job duties, or that she even 11 engaged in agricultural work. (Mot. 10-11.) Plaintiff also fails to allege whether she was a 12 seasonal or migrant agricultural worker. While the FAC alleges the corporate Defendants 13 allegedly have “hundreds of employees and provide[] employees in the agricultural industry,” it 14 fails to allege Plaintiff was an agricultural worker for one or both corporate Defendants and 15 whether she was a migrant or agricultural worker. Compare FAC generally, with Guerrero v. T- 16 Y Nursery, Inc., No. 13CV3126 JM BGS, 2014 WL 5480705, at *3 (S.D. Cal. Oct. 29, 2014) 17 (finding allegations that plaintiffs were “seasonal agricultural worker(s) within the meaning of 29 18 U.S.C. § 1802(1), and/or individuals entitled to the AWPA's protections”; defendants operated 19 and supplied labor to agricultural nurseries; and “plaintiffs cultivated plants, shrubs and trees” 20 were “minimally sufficient” to establish that plaintiffs were seasonal agricultural workers for 21 purposes of AWPA). Plaintiff’s complaint fails to allege even the most basic facts regarding her 22 employment that would allow the Court to draw a reasonable inference that she can state a claim 23 for protection under the AWPA. The Court therefore recommends Plaintiff’s claim for violation 24 of the AWPA be dismissed with leave to amend.4 25 26 4 Defendants also argue that the remaining allegations in the FAC regarding violations of the AWPA are 27 conclusory regurgitations of AWPA legal standards and are insufficiently plead for the same reasons the California wage and hour claims are insufficiently pled. This argument is well-taken, should Plaintiff choose to amend her 1 C. Labor Code Violations 2 Defendants argue Plaintiff’s six causes of action alleging violations of the California Labor 3 Code fail to allege sufficient facts to state a claim. The Court addresses each claim in turn. 4 1. Failure to Pay Non-Productive Time 5 Plaintiff’s second cause of action alleges Defendants violated California Labor Code § 6 226.2. (FAC ¶¶ 51-61.) California law requires that employers compensate their piece-rate 7 employees for rest and recovery periods and other nonproductive time “separate from any piece- 8 rate compensation.” Cal. Lab. Code § 226.2(a)(1). This separate compensation for rest and 9 recovery time must be at an hourly rate that is no less than the applicable minimum wage, and in 10 some circumstances must be greater than the minimum wage. Cal. Lab. Code § 226.2(a)(3)(A), 11 (B). Similarly, the separate compensation for employees’ other nonproductive time must be no 12 less than the applicable minimum wage. Cal. Lab. Code § 226.2(a)(4). 13 The FAC alleges Plaintiff and the Class “were not compensated for rest and recovery 14 periods and other nonproductive time separate from any piece-rate compensation.” (FAC ¶ 53; 15 see also FAC ¶ 3 (same).) The FAC further alleges that Defendants failed to include on itemized 16 statements, the total hours of compensable rest and recovery periods or other nonproductive time, 17 the rate of compensation, and gross wages paid for those periods during the pay period in violation 18 of California Labor Code § 226.2(a)(2)(A). (FAC ¶¶ 54-55.) 19 Plaintiff contends the crux of the FAC is Defendants’ failure to separately pay its 20 employees for rest breaks under its piece rate system of compensation. 5 (Opp’n 14.) Defendants 21 argue the FAC fails to allege anything more than the legal conclusion that she was not 22 compensated properly because of a piece-rate system. (Mot. 11-12.) The Court agrees. Plaintiff’s 23 claim for failure to pay non-productive time is a recitation of the language used in section 226.2, 24 without support of any allegations of fact that would plausibly indicate any Defendant operates an 25 unlawful compensation system that fails to compensate rest periods or other unspecified non- 26 5 Plaintiff also argues Defendants’ unlawful compensation system fails to pay non-exempt employees for rest 27 breaks and other nonproductive time separate from any piece-rate compensation. (Id. (citing FAC ¶ 3).) If Plaintiff intends to plead failure to separately pay for “other nonproductive time,” Plaintiff fails to provide any facts alleging 1 productive time. 2 Courts are not required to accept as true allegations that are “merely conclusory, 3 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 4 266 F.3d 979, 988 (9th Cir. 2001). Courts are also not required to “assume the truth of legal 5 conclusions cast in the form of factual allegations.” Marceau v. Blackfeet Hous. Auth., 540 F.3d 6 916, 919 (9th Cir. 2008) (citation omitted). Accordingly, the Court recommends dismissing 7 Plaintiff’s second cause of action with leave to amend. 8 2. Failure to Pay Non-Productive Time Provide Meal Periods or Premiums 9 Plaintiff’s third cause of action alleges Defendants violated California Labor Code §§ 10 226.7, 512, and the “applicable IWC Wage Order.” (FAC ¶¶ 62-72.) California law requires an 11 employer to provide its non-exempt employees with a thirty-minute meal period for every five 12 hours of work. See Cal. Labor Code §§ 226.7, 512. A compliant meal break under California law 13 requires the employer to “relieve the employee of all duty for the designated period but need not 14 ensure that the employee does no work.” Brinker Rest. Corp. v. Superior Court, 53 Cal.4th 1004, 15 1034 (2012). To successfully state a meal or rest break claim, the plaintiff must allege sufficient 16 facts identifying an instance where they were deprived of a meal or rest break. Perez v. DNC 17 Parks & Resorts at Sequoia, No. 1:19-CV-00484-DAD-SAB, 2020 WL 4344911, at *6 (E.D. Cal. 18 July 29, 2020) (citing Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 646 (9th Cir. 2014) and 19 Boyack v. Regis Corp., 812 F. App'x 428, 431 (9th Cir. 2020)6 (affirming that a rest break claim 20 fell short of the Landers’ requirements by not “demonstrating at least one workweek in which [the 21 plaintiffs] were personally deprived of rest breaks”)). 22 The FAC alleges Plaintiff and the Class were not afforded timely meal periods as required 23 by California law, since they were routinely required to work five hours or more without a timely, 24 thirty minute, uninterrupted meal period, and they were not compensated for missed meal periods. 25 (FAC ¶ 63.) Plaintiff alleges Defendants’ meal period policies failed to provide employees: “(a) at 26 least one (1) meal period prior to the fifth hour and/or two (2) meal periods for shifts greater than 27 1 ten hours, (b) net thirty-minute meal periods, and/or (c) timely meal periods.” (FAC ¶ 29.) 2 Plaintiff further alleges she and the class did not voluntarily or willfully waive meal periods. 3 (FAC ¶ 68.) 4 Defendants argue the claim should be dismissed because Plaintiff fails to allege sufficient 5 facts to set forth a plausible claim. (Mot. 13.) Defendants note Plaintiff’s complaint is bereft of 6 any facts alleging employees could not take their unpaid meal breaks in between completing 7 various piece-rate tasks and that Plaintiff does not allege how she was unable to take meal 8 breaks. (Id.) 9 In opposition, Plaintiff argues the FAC “could not be clearer about the nature of 10 Defendants’ meal break violations.” (Opp’n 14.) The Court disagrees. Couched in formulaic 11 recitations of statutory language, the FAC alleges that Plaintiff and the Class were “routinely 12 required to work” without a meal break. (FAC ¶ 63.) The FAC otherwise fails to provide any 13 supporting factual allegations, “such as when, how, and which individuals were denied meal 14 periods [] that would plausibly indicate defendants are liable.” Tavares v. Cargill Inc., No. 1:18- 15 CV-00792-DAD-SKO, 2019 WL 2918061, at *5 (E.D. Cal. July 8, 2019) (citing Luna v. 16 Universal City Studios Prods. LLLP, No. 12-CV-9286 PSG (SSX), 2013 WL 12308201, at *4 17 (C.D. Cal. Mar. 29, 2013) (dismissing a complaint where plaintiff “fail[ed] to state who denied 18 [him] meal periods, when they were denied, and what policies and practices resulted in a 19 deprivation of meal periods”); see also Wyland v. Berry Petroleum Co., LLC, No. 1:18-CV- 20 01414-DAD-JLT, 2019 WL 1047493, at *7 (E.D. Cal. Mar. 5, 2019) (dismissing a meal period 21 claim where the plaintiff alleged he was “prohibited by his supervisors from taking [ ] meal 22 breaks” without factual support). 23 Plaintiff argues that the Ninth Circuit only requires that she merely allege she was 24 deprived of a meal break to successfully state a meal break violation. (Opp’n 14 (citing Landers, 25 771 F.3d at 646).) The Court disagrees. While the Ninth Circuit did not explicitly set a rule for 26 pleading requirements for meal break violations, it concluded that allegations that merely alleged 27 that a plaintiff was not paid for overtime hours “fail[ed] to state a plausible claim under Rule 8” 1 Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013)). Applying this framework, 2 Plaintiff’s admittedly mere allegation she was routinely deprived of meal breaks states a 3 possibility that Defendants violated section 226.7, but, without any supporting factual 4 allegations, Plaintiff has not plausibly stated a claim for a meal break violation. Accordingly, the 5 Court recommends granting Defendants’ motion with leave to amend. 6 3. Failure to Pay Minimum and Overtime Wages 7 Plaintiff’s fourth cause of action alleges Defendants violated California Labor Code §§ 8 1194, 1194.2, 1197(A) and the “applicable IWC Wage Order” by failing to pay minimum wages. 9 (FAC ¶¶ 73-82.) Plaintiff’s fifth cause of action alleges Defendants violated California Labor 10 Code §§ 510, 1194, 1194.2, and the “applicable IWC Wage Order” by failing to pay overtime 11 wages. (FAC ¶¶ 83-91.) California law requires employers to pay employees the minimum 12 wage for all hours worked, see California Labor Code § 1197, and overtime pay for any work in 13 excess of eight hours in one workday and forty hours in any workweek, see California Labor 14 Code § 510(a). 15 With regard to her unpaid minimum wage claim, Plaintiff alleges that “Defendants have 16 failed to pay minimum wages for all hours worked. In particular, Defendants failed to record 17 and compensate piecework workers for nonproductive time separate from piece-rate units and 18 failed to accurately calculate compensation for rest and recovery periods.” (FAC ¶ 75.) In 19 support of her unpaid overtime wage claim, Plaintiff alleges Defendants “employ[ed] Plaintiff 20 and the class in excess of eight (8) hours in one day and forty (40) hours in a workweek without 21 paying the required overtime rate.” (FAC ¶ 86.) Further, Plaintiff alleges that she and the class 22 “were routinely working hours in excess of eight (8) hours per day without receiving overtime 23 compensation.” (Id.) 24 Defendants argue Plaintiff’s allegations are legal conclusions without requisite factual 25 support. Defendants rely on Landers v. Quality Communications, Inc., wherein the Ninth Circuit 26 held that post-Iqbal, “detailed factual allegations regarding the number of overtime hours worked 27 are not required to state a plausible claim,” but conclusory allegations that merely recite the 1 hourly or overtime wage claim under the FLSA, a plaintiff must identify “at least one workweek 2 when he worked in excess of forty hours and was not paid for the excess hours in that workweek, 3 or was not paid minimum wages.” Id. at 646. Although Landers addressed FLSA claims, 4 federal courts have held that its reasoning applies to California Labor Code claims as well. Cook 5 v. Land O'lakes, Inc., No. 1:20-CV-00553-NONE-SAB, 2020 WL 5633045, at *8 (E.D. Cal. 6 Sept. 21, 2020), report and recommendation adopted, No. 1:20-CV-00553-NONE-SAB, 2020 7 WL 5983346 (E.D. Cal. Oct. 8, 2020); see also Perez v. DNC Parks & Resorts at Asilomar, Inc., 8 No. 1:19-CV-00484-DAD-SAB, 2022 WL 411422, at *6 (E.D. Cal. Feb. 10, 2022) (“This FLSA 9 pleading requirement applies to minimum and overtime wage claims under state law as well.”). 10 Plaintiff argues that her allegations that Defendants used a piece-rate compensation 11 system under which they failed to provide separate compensation for rest and recovery periods 12 and other non-productive time is sufficient to state a claim for failure to pay minimum wage. 13 (Opp’n 15 (citing FAC ¶ 3).) Plaintiff further contends that a plaintiff asserting an overtime 14 wage claim merely needs to allege the Defendant was her employer and that she worked more 15 than forty hours per week or more than eight hours in a day without receiving overtime 16 compensation. (Opp’n 16 (citing McKeen-Chaplin v. Franklin Am. Mortg. Co., No. C 10-5243 17 SBA, 2011 WL 4082543 (N.D. Cal. Sept. 13, 2011)).)7 Thus, Plaintiff argues the allegation that 18 Defendants employed Plaintiff and the Class “routinely” in excess of eight hours in one day and 19 forty hours in a workweek without overtime compensation is sufficient to state a claim for failure 20 to pay premium overtime wages. (Id.) 21 The Court finds the FAC falls short of stating plausible claims for failure to pay 22 minimum and overtime wages. Despite conceding Landers requires a Plaintiff to “plead facts 23 demonstrating at least one workweek when she was not paid minimum wage” (Opp’n 15 (citing 24 Landers, 771 F.3d at 647)), Plaintiff fails to identify any workweek where she worked in excess 25 7 In McKeen-Chaplin, the court denied a motion to dismiss because it found the plaintiff adequately alleged 26 that the “[d]efendant was her employer, that she worked in its Concord, California office from February 2009 through October 2010, and specific examples where she worked more than forty hours per week but did not receive 27 overtime compensation.” McKeen-Chaplin, 2011 WL 4082543, at *3. The FAC here fails to adequately allege comparable factual support. Rather, Plaintiff fails to adequately identify her employer, any date of employment, or 1 of forty hours and was not paid for the excess hours in that workweek or was not paid minimum 2 wages. In fact, Plaintiff fails to allege any factual content—including the hours she typically 3 worked during a workweek, her wage, or an estimate of the amount of minimum and overtime 4 wages she believes she is owed—to permit the Court to find that Plaintiff states a plausible claim 5 for failure to pay minimum or overtime wages. See id. at 645 (“A plaintiff may establish a 6 plausible claim by estimating the length of her average workweek during the applicable period 7 and the average rate at which she was paid, the amount of overtime wages she believes she is 8 owed, or any other facts that will permit the court to find plausibility.”) 9 Further, while Plaintiff alleges she and the class were “routinely” working in excess of 10 eight hours per day without overtime compensation, she fails to identify what constitutes 11 “routine[]” and whether it represents the average workweek during the applicable period. See 12 Perez, 2020 WL 4344911, at *8 (dismissing minimum wage and overtime pay claims where, 13 although the plaintiff alleged she “often works 8 hours per week over 6 days, but ... is only paid 14 for 43 to 45 hours for those weeks,” she failed to indicate what constitutes “often” and whether it 15 represents the average workweek during the relevant period); Bush v. Vaco Tech. Servs., LLC, 16 No. 17-cv-05605-BLF, 2018 WL 2047807, at *9 (N.D. Cal. May 2, 2018) (concluding plaintiff's 17 “bare assertion that she ‘regularly’ worked more than the statutory requirement is conclusory and 18 insufficient under the standard set forth in Landers”); Boyack v. Salon Mgmt. Corp., No. 8:18- 19 cv-01233-AG-DFM, 2019 WL 1744855, at *4 (C.D. Cal. Feb. 11, 2019) (dismissing plaintiffs' 20 hourly wage claims despite “somewhat fact specific” allegations including pleading three 21 occasions when plaintiffs pay rate was incorrect and two other occasions when they were paid 22 purely commission instead of minimum wage), aff’d, 812 F. App'x 428 (9th Cir. 2020). 23 The Court finds Plaintiff’s allegations of unpaid overtime and minimum wage claims in 24 the FAC “provide nothing beyond ‘an unadorned, the defendant-unlawfully-harmed-me 25 accusation.’ ” Perez, 2020 WL 4344911, at *4 (quoting Iqbal, 556 U.S. at 678). Courts find that 26 conclusory allegations such as those included in the FAC are insufficient to state a plausible 27 claim. Avalos v. Amazon.com LLC, No. 1:18-CV-00567-DAD-BAM, 2018 WL 3917970, at *3 1 mathematical precision” the amount of overtime owed by Defendants, they should at the very 2 least “be able to allege facts demonstrating there was at least one workweek in which they 3 worked in excess of forty hours and were not paid overtime wages.” Landers, 771 F.3d at 646 4 (quoting Dejesus v. HF Management Services, LLC, 726 F.3d 85, 90 (2d Cir. 2013)) (emphasis 5 added). 6 The FAC fails to plausibly allege that Plaintiff was entitled to but was denied overtime or 7 minimum wages. Accordingly, the Court recommends granting Defendants’ motion to dismiss 8 Plaintiff’s fourth and fifth causes of action with leave to amend. 9 4. Waiting Time Penalties 10 Plaintiff’s sixth cause of action alleges Defendants violated California Labor Code §§ 11 201-203, which regulate the timely payment of final wages upon an employee’s separation. 12 Section 201 covers employees who are terminated by their employer and section 202 covers 13 employees who resigned from employment. Section 203 imposes penalties on employers that 14 “willfully” fail to pay final wages in accordance with sections 201 and 202. 15 Plaintiff alleges that Defendants failed to pay minimum, overtime, meal period wages, 16 and rest and recovery periods and other nonproductive time separate from any piece-rate 17 compensation. (FAC ¶ 94.) Plaintiff alleges Defendants failed to liquidate those unpaid wages 18 upon separation from employment, whether through voluntary resignation or involuntary 19 resignation. (Id.) Plaintiff thus alleges Defendants violated “California Labor Code §§ 201 20 and/or 202” by failing to pay wages owed to Plaintiff and the class when they “left their 21 employment with Defendants.” (FAC ¶ 95.) 22 Defendants argue Plaintiff’s claim fails because she alleges only legal conclusions, does 23 not allege facts regarding termination or resignation, and fails to sufficiently plead a willful 24 violation. (Mot. 17.) The Court agrees. Plaintiff’s allegations that Defendants failed to pay 25 minimum, overtime, meal period, and rest period wages are factually deficient, and are therefore 26 merely legal conclusions for the reasons previously discussed. 27 Further, while Plaintiff alleges she and the Class “left their employment with Defendants” (FAC ¶ 95), Plaintiff fails to allege whether she resigned or was terminated. See 1 Boyack v. Salon Mgmt. Corp., 2019 WL 1744855, at *5 (dismissing a claim where “Plaintiffs 2 don't even allege whether Plaintiffs were discharged or whether they resigned...Instead, 3 Plaintiff’s parrot the statutory language underlying their claims and conclude Defendants failed 4 to abide by that language.”); Perez, 2020 WL 4344911, at *6 (same). 5 Plaintiff also offers no facts supporting her allegation that Defendants “willfully” failed 6 to pay wages upon her unspecified termination or resignation. Instead, she alleges “Defendants 7 willfully failed to pay all wages due as the failure to pay was not inadvertent or accidental” and 8 despite leaving Defendants’ employment, Plaintiff nor the class have received payment. (FAC ¶ 9 97, 99.) These factually deficient allegations are insufficient to state a waiting time penalty 10 claim. See Porch v. Masterfoods, USA, Inc., 685 F. Supp. 2d 1058, 1075 (C.D. Cal. 2008) 11 (explaining the willfulness element under section 203.), aff’d, 364 F. App’x 365 (9th Cir. 2010). 12 Accordingly, the Court recommends Plaintiff’s waiting time penalties claim be dismissed 13 with leave to amend. 14 5. Failure to Provide Accurate Itemized Wage Statements 15 Plaintiff’s seventh cause of action alleges Defendants violated California Labor Code §§ 16 226, 226.2 and the IWC Wage Order. (FAC ¶¶ 102-112.) An employer is required semimonthly 17 or at the time of each payment of wages to supply the employee with an accurate itemized 18 statement that shows nine specific items. Cal. Lab. Code § 226(a). To recover damages for a 19 violation of section 226(a), “an employee ‘must suffer injury as a result of a knowing and 20 intentional failure by an employer to comply with the statute.’ ” Dawson v. HITCO Carbon 21 Composites, Inc., No. CV16-7337 PSG FFMX, 2017 WL 7806618, at *5 (C.D. Cal. Jan. 20, 22 2017) (quoting Price v. Starbucks, Inc., 192 Cal. App. 4th 1136, 1142 (2011)). However, this 23 injury requirement “ ‘cannot be satisfied simply because one of the nine itemized requirements ... 24 is missing from a wage statement.’ The deprivation of information is not itself sufficient to 25 establish a cognizable injury.” Id. (quoting Price, 192 Cal. App. 4th at 1143). 26 Plaintiff alleges Defendants failed to provide accurate itemized wage statements that 27 include each of the nine itemized requirements, in violation of section 226(a). (FAC ¶ 104.) 1 and Class Members itemized wage statements in conformance with Labor Code § 226” and have 2 willfully refused to pay and accurately state wages” with intent to “annoy harass, oppress, 3 hinder, delay, or defraud Plaintiff and the class, in violation of California Labor Code § 226.6.” 4 (FAC ¶¶ 107-109.) 5 The Court first finds Defendants’ argument that Plaintiff’s claim should fail because she 6 fails to plausibly allege a knowing or intentional violation is without merit. (Mot. 19.) “Malice, 7 intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed. R. 8 Civ. P. 9(b); Reinhardt v. Gemini Motor Transp., 879 F.Supp.2d 1138, 1142 (E.D. Cal. 2012). 9 Here, Plaintiff alleges, albeit in a roundabout manner, that Defendants “knowingly and 10 intentionally fail[ed] to provide Plaintiff and Class Members itemized wage statements in 11 conformance with Labor Code § 226….” (FAC ¶ 107.) The Court finds the FAC sufficiently 12 makes a general allegation that Defendants engaged in knowing and intentional conduct. 13 Defendants also argue that Plaintiff’s wage statement claim merely recites legal standards 14 and does not comply with federal pleading standards. (Mot. 18-19.) The Court agrees. The 15 FAC parrots the language of section 226 when alleging Defendants’ wage statements omitted or 16 inaccurately reflected each of nine itemizations without providing any factual matter. For 17 example, Plaintiff alleges Defendants “fail[ed] to separately state the total hours of compensable 18 rest and recovery periods, the rate of compensation and the gross wages paid for those periods 19 during the pay period, and the total hours of other nonproductive time, the rate of compensation, 20 and the gross wages paid for that time during the pay period.” (FAC ¶¶ 105-06.) However, this 21 allegation is merely a summarized recitation of section 226.2(a)(2)(A)-(B). 22 The most specific allegation in relation to Plaintiff’s wage statement claim is reiterating 23 the first and fifth items listed in section 226 with a catch all: Defendants “inaccurately stat[ed] 24 gross and net wages and other issues as described above.” (FAC ¶ 105.) However, the FAC 25 does not contain any facts alleging an estimated accurate gross or net wage, nonetheless a factual 26 allegation or example of an inaccurate gross or net wage reflected on any wage statement. See 27 Boyak, 2019 WL 1744855, at *5 (dismissing a claim where the plaintiff generally alleged 1 applicable hourly rates of pay, total hours worked, and the hours worked at each pay rate in 2 violation of California Labor Code Sections 226 and 1174.”). 3 While sufficiently pleading a possible violation, the FAC fails to state a plausible claim 4 for failure to provide accurate itemized wage statements. The Court therefore recommends 5 dismissing Plaintiff’s seventh cause of action with leave to amend. 6 D Violations of the UCL 7 Plaintiff’s eighth cause of action alleges Defendants violated the UCL, which prohibits 8 “any unlawful, unfair, or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. 9 The UCL “borrows violations from other laws by making them independently actionable as 10 unfair competitive practices.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 11 1143 (2003). “A business act or practice may violate the UCL if it is either ‘unlawful,’ ‘unfair,’ 12 or ‘fraudulent,’” as “[e]ach of these three adjectives captures ‘a separate and distinct theory of 13 liability.’” Rubio v. Cap. One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010) (citing Kearns v. Ford 14 Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009). With respect to the unlawful prong, “the UCL 15 permits violations of other laws to be treated as unfair competition that is independently 16 actionable.” Kasky v. Nike, Inc., 27 Cal.4th 939, 949 (2002). However, “[w]here a plaintiff 17 cannot state a claim under the ‘borrowed’ law, they cannot state a UCL claim either.” Tavares, 18 2019 WL 2918061, at *8 (holding that where plaintiff inadequately pled a wage and hour claim, 19 her derivative UCL claim must also fail). 20 The FAC conclusorily alleges Defendants’ actions constitute unlawful, unfair, and 21 fraudulent business practices. (See FAC ¶¶ 115, 117-21.) However, Plaintiff appears to only 22 defend the unlawful theory of liability in her opposition. (See Opp’n 20 (“[the FAC] identifies 23 myriad [sic] statutes and wage orders Defendants violated through their unlawful employment 24 policies and practices”).) Because Plaintiff’s UCL claim is entirely derivative of her second 25 through seventh causes of action which the Court finds are insufficiently plead, the Court 26 recommends also dismissing Plaintiff’s UCL claim with leave to amend. 27 E. PAGA Penalties 1 Code violations on behalf of themselves and other current or former employees. Cal. Lab. Code 2 § 2699(a). An employee plaintiff suing under PAGA “does so as the proxy or agent of the 3 state’s labor law enforcement agencies.” Arias v. Superior Ct., 46 Cal. 4th 969, 986 (2009). In 4 such action, “the employee plaintiff represents the same legal right and interest as state labor law 5 enforcement agencies—namely, recovery of civil penalties that otherwise would have been 6 assessed and collected by the Labor Workforce Development Agency.” Id. (citing Cal. Lab. 7 Code § 2699(a), (f)). 8 The parties agree Plaintiff’s PAGA claim is derivative of her second through seventh 9 causes of action alleging Labor Code violations. (Mot. 20; Opp’n 22.) The Court notes 10 Plaintiff’s PAGA claim does not add any factual allegations. (See FAC ¶¶ 123-135.) “[L]ike the 11 UCL, a PAGA claim ‘rises or falls’ with its underlying causes of action.” Perez, 2020 WL 12 4344911, at *11 (quoting Price, 192 Cal. App. 4th at 1147). The Court therefore recommends 13 dismissing Plaintiff’s derivative PAGA claim with leave to amend for the reasons discussed 14 herein regarding the underlying Labor Code violations. 15 F. Joint Employer Liability 16 Plaintiff alleges that she was “employed directly or jointly by Defendants….” (FAC ¶ 17 10.) Defendants argue this legal conclusion fails to plausibly allege a joint employer theory of 18 liability for the four Defendants. (Mot. 20-21.) Plaintiff does not respond to nor dispute this 19 argument. (See generally Opp’n.) 20 To be held liable for any violations under the California Labor Code, the defendant must 21 be Plaintiff’s employer. To be liable as a joint employer, an entity must have had the ability to 22 “(1) to exercise control over . . . wages, hours or working conditions, (2) to suffer or permit to 23 work, or (3) to engage, thereby creating a common law employment relationship.” Ochoa v. 24 McDonald’s Corp., 133 F. Supp. 3d 1228, 1233 (N.D. Cal. 2015) (internal quotation marks 25 omitted) (citing Martinez v. Combs, 49 Cal. 4th 35, 64 (2010)). However, in certain 26 circumstances, “a person can be a joint employer without exercising direct control over the 27 employee.” Medina v. Equilon Enterprises, LLC, 68 Cal. App. 5th 868, 879 (2021). “While 1 pleading stage, plaintiff must at least allege some facts in support of this legal conclusion.” 2 Hibbs-Rines v. Seagate Techs., LLC., No. C 08-05430 SI, 2009 WL 513496, at *5 (N.D. Cal. 3 Mar. 2, 2009) (emphasis in original). 4 To the extent Plaintiff is alleging a theory of joint employer liability, Plaintiff's single 5 allegation that she “has been employed directly or jointly by Defendants” is far from sufficient. 6 The FAC is otherwise devoid of any factual allegations that support her disjunctive allegation 7 that the Defendants were her joint employers. Merely stating a legal conclusion that Defendants 8 are joint employers is insufficient to allege joint employer liability. See, e.g., U.S. E.E.O.C. v. 9 Am. Laser Centers LLC, No. 1:09-cv-2247-AWI-DLB, 2010 WL 3220316, at *5 (E.D. Cal. Aug. 10 13, 2010) (dismissing joint employer claims because the plaintiff failed to plead any specific 11 allegations that explained how the defendant companies were related to each other); Hibbs- 12 Rines, 2009 WL 513496, at *5 (dismissing joint employer liability where the plaintiff merely 13 alleged defendants were joint employers); Perez, 2020 WL 4344911, at *4 (same). 14 Accordingly, the Court finds Plaintiff’s allegation of joint employer liability is 15 insufficiently plead and therefore recommends dismissal of the complaint with leave to amend. 16 G. Individual Defendants 17 Plaintiff’s second through seventh claims alleging violations of the Labor Code are also 18 brought against Arellano-Moya and Fuentes individually in their capacities as CEO and CFO, 19 respectively, of Grow Smart. Plaintiff describes each individual Defendant’s respective job title 20 and then alleges each individual: 21 was in charge of making major corporate decisions and managing the operations of the corporation during the relevant time period. 22 As such, he was on notice, whether actual or constructive, of all of the violations described above, and failed to prevent or address 23 them. On information and belief, Defendant…is an owner, director, officer, or managing agent of Defendant Grow Smart 24 Labor, Inc. who controlled and caused the violations at issue here either by making illegal policies, implementing illegal policies, or 25 failing to correct illegal policies. Defendant… is therefore liable as a person acting on behalf of Defendant Grow Smart Labor, Inc. 26 under California Labor Code § 558.1. 27 (FAC ¶¶ 15-16.) 1 managing agent of the employer” who “violates, or causes to be violated, Sections 203, 226, 2 226.7, 1193.6, 1194, or 2802” of the Labor Code. Cal. Lab. Code § 558.1(a),(b). Defendants do 3 not dispute any substantive application of section 558.1. (See Mot 22.) Instead, Defendants 4 argue Arellano-Moya and Fuentes should be dismissed because Plaintiff fails to plead sufficient 5 facts to show either individual Defendant caused violations of the Labor Code. (Mot. 22.) In 6 opposition, Plaintiff argues the language above sufficiently extends liability for the alleged Labor 7 Code violations against Arellano-Moya and Fuentas as individuals. 8 Section 558.1 “does not enable courts to, in effect, pierce the corporate veil to hold 9 corporate owners, shareholders, or other officers liable for wrongdoing committed by the 10 employer corporation.” Roush v. MSI Inventory Serv. Corp., No. 2:17-CV-1010-JAM-KJN, 11 2018 WL 3637066, at *3 (E.D. Cal. July 30, 2018). Rather, section 558.1 makes individual 12 owners, directors, officers or managing agents liable “if they themselves acted to violate or cause 13 the violation of California’s labor laws.” Id. A plaintiff must therefore “allege specific facts to 14 establish that [the individual Defendant] was personally involved in the alleged violations.” 15 Carter v. Rasier-CA, LLC, No. 17-CV-00003-HSG, 2017 WL 4098858, at *5 (N.D. Cal. Sept. 16 15, 2017), aff'd, 724 F. App'x 586 (9th Cir. 2018). Courts in this Circuit have dismissed claims 17 that contain no specific allegation of individual wrongdoing as failing to state a claim upon 18 which relief can be granted. See id.; Roush, 2018 WL 3637066, at *3; Rios v. Linn Star Transfer, 19 Inc., No. 19-CV-07009-JSC, 2020 WL 1677338, at *6 (N.D. Cal. Apr. 6, 2020); Plaskin v. 20 NewSight Reality, Inc., No. 19-cv-00458, 2019 WL 4316255, at *4 (C.D. Cal. 2019). 21 Here, the FAC vaguely alleges both Defendants are individually liable because, as CEO 22 and CFO, each “controlled and caused the violations at issue here either by making illegal 23 policies, implementing illegal policies, or failing to correct illegal policies.” (FAC ¶¶ 15-16.) 24 The FAC is otherwise devoid of any facts alleging what actions Defendants Arellano-Moya and 25 Fuentas took in their individual capacity to violate Plaintiff’s rights or cause violation of 26 California labor law. While plaintiff is not required to conclusively establish Defendants 27 Arellano-Moya and Fuentas were personally involved in the alleged hour and wage violations at 1 The Court therefore recommends dismissing the complaint and granting leave to amend the 2 allegations against Defendants Arellano-Moya and Fuentas. 3 H. Leave to Amend 4 Courts freely grant leave to amend a complaint which has been dismissed. See Fed. R. 5 Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”); Schreiber 6 Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (“If a complaint is 7 dismissed for failure to state a claim, leave to amend should be granted unless the court 8 determines that the allegation of other facts consistent with the challenged pleading could not 9 possibly cure the deficiency.”); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (same). 10 Leave to amend generally shall be denied only if amendment would unduly prejudice the 11 opposing party, cause undue delay, be futile, or if the moving party has acted in bad faith. 12 Leadsinger, Inc. v. BMG Music Publishing, 512 F.3d 522, 532 (9th Cir. 2008). “These factors, 13 however, are not given equal weight. Futility of amendment can, by itself, justify the denial of ... 14 leave to amend.” U.S. ex rel. Insoon Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 15 (9th Cir. 2001). 16 Plaintiff proffers her claims can be cured by amendment and therefore requests leave to 17 amend the FAC. (ECF No. 24.) Defendants argue the Court would be justified in denying leave 18 to amend because Plaintiff has already amended her complaint and still fails to allege any facts. 19 (Mot. 6; Reply 11.) 20 The Court must briefly address Plaintiff’s assertion that she is entitled to leave to amend 21 because there is “no reason to expect Reyes has exhausted her efforts to provide what would 22 otherwise be ‘free discovery’ to Defendants.” (Opp’n 24.) This argument is not well-taken. The 23 purpose of federal pleading standards is not to provide “free discovery” to a defendant. Rather, 24 the well-established requirement that a complaint “contain sufficient allegations of underlying 25 fact [is] to give fair notice and to enable the opposing party to defend itself effectively.” Starr, 26 652 F.3d at 1216. As discussed, Plaintiff’s thirty-five page FAC merely parrots the language of 27 the applicable statutory provisions without providing any supporting factual allegations. See 1 announces does not require ‘detailed factual allegations,’ but it demands more than an 2 unadorned, the-defendant-unlawfully harmed-me accusation.”). Plaintiff acknowledges the spirit 3 of Iqbal and Twombly “is obvious: plead what is sufficient to draw out the ‘who, what, where, 4 why, and how’ of the factual predicate such that a defendant may respond, put the matter at 5 issue, and get on with litigation.” (Opp’n 11.) However, the FAC is wholly devoid of even the 6 most basic factual context regarding Plaintiff, including her job title, job description or duties, 7 dates of employment, the Defendant for which she worked, a workweek where she did not 8 receive minimum or overtime wages, whether she resigned or was terminated, whether she was a 9 seasonal or migrant agricultural worker, or whether she was even an agricultural worker at all. 10 Alleging such basic facts—which are known to Plaintiff at the time of filing—does not, as 11 Plaintiff argues, “impose unnecessary barriers…by compelling guesswork or pleading facts 12 normally developed through discovery.” (Id.) The absence of factual allegations compels this 13 Court to find the FAC fails to meet a threshold standard of plausibility. 14 Setting aside Plaintiff’s misguided characterization of federal pleading standards and the 15 venerated principle of fair notice, the Court finds Plaintiff has not acted in bad faith or with 16 dilatory motive, and it would not prejudice Defendants or be futile to grant an opportunity to 17 amend the FAC to allege factual allegations. The Court therefore recommends granting Plaintiff 18 leave to amend to cure the deficiencies identified in these findings and recommendations. 19 V. 20 RECOMMENDATION AND ORDER 21 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 22 1. Defendants’ requests for judicial notice be GRANTED in part and DENIED in 23 part; and 24 2. Defendants’ motion to dismiss Plaintiff’s first amended complaint be GRANTED 25 with leave to amend. 26 These findings and recommendations are submitted to the district judge assigned to this 27 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 1 | findings and recommendations with the Court. Such a document should be captioned 2 | “Objections to Magistrate Judge’s Findings and Recommendations.” The District Judge will 3 | review the Magistrate Judge’s findings and recommendations pursuant to 28 U.S.C. § 4 | 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 5 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 6 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 IT IS SO ORDERED. DAA (e_ 9 | Dated: _June 11, 2024 _ ef 0 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28