Vallejo v. Sterigenics U.S., LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEXANDER VALLEJO, individually Case No.: 3:20-cv-01788-AJB-AHG and on behalf of others similarly situated, 12 Plaintiff, ORDER: 13 v. (1) GRANTING DEFENDANT’S 14 STERIGENICS U.S., LLC, a Delaware MOTION TO DISMISS PLAINTIFF’S 15 limited liability company; and DOES 1 FIRST AMENDED COMPLAINT AND through 50, inclusive, CLASS ALLEGATIONS; AND 16 Defendants. 17 (2) DENYING DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S 18 CLASS ALLEGATIONS 19 (Doc. No. 19) 20 21 Presently pending before the Court is Defendant Sterigenics U.S., LLC’s 22 (“Defendant”) motion to dismiss the First Amended Complaint (“FAC”) and/or class 23 allegations and/or motion to strike the class allegations. (Doc. No. 19.) The motion is fully 24 briefed, (Doc. Nos. 23 & 24), and the matter is suitable for determination on the papers. 25 For the reasons stated herein, the Court GRANTS the motion to dismiss Plaintiff’s FAC 26 and class allegations and DENIES the motion to strike Plaintiff’s class allegations. 27 /// 28 1 I. BACKGROUND 2 Plaintiff brings this class action for alleged violations of wage abuse under 3 California’s Labor Codes and Business and Professions Code. (FAC ¶ 20.) Between 4 January 2013 and January 2018, Plaintiff was employed by Defendant as an hourly-paid 5 non-exempt Machine Operator. (Id. ¶ 16.) During this time, Defendant allegedly “had the 6 authority to hire and terminate Plaintiff and the Class; to directly or indirectly control work 7 rules, working conditions, wages, working hours, and conditions of employment of 8 Plaintiff and the Class; and to hire and terminate the employment of Plaintiff and the 9 Class.” (Id. ¶ 18.) Plaintiff asserts Defendant “engaged in an ongoing and systematic 10 scheme of wage abuse against their hourly-paid or non-exempt employees.” (Id. ¶ 20.) For 11 example, Plaintiff states Defendant regularly required Plaintiff and the purported class to 12 work off the clock without compensation, rounded employee time in a manner that was not 13 neutral which advantaged Defendants, and failed to adequately inform Plaintiff and the 14 purported class of their right to take meal and rest periods. (Id.) 15 Plaintiff filed the Complaint on August 5, 2020, in the Superior Court of California, 16 County of San Diego, as Case No. 37-2020-00027438-CU-OE-CTL. (Doc No. 1 at 2.) On 17 September 11, 2020, Defendant removed the case to this Court pursuant to 28 U.S.C. 18 §§ 1332(d), 1441(a), and 1446. (Id.) On September 18, 2020, Defendant filed a motion to 19 dismiss Plaintiff’s complaint and motion to strike portions of the complaint (Doc. No. 4), 20 which was granted with leave to amend (Doc. No. 16). Plaintiff filed the FAC on July 14, 21 2021. (Doc. No. 18.) Defendant then filed the instant motion. (Doc. No. 19.) Plaintiff filed 22 a response in opposition, to which Defendant replied. (Doc. Nos. 23 & 24.) 23 II. LEGAL STANDARD 24 A. Federal Rule of Civil Procedure 12(b)(6) 25 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 26 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 27 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 28 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of cognizable 1 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 2 Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). 3 However, a complaint survives a motion to dismiss if it contains “enough facts to state a 4 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 5 (2007). 6 Notwithstanding this deference, the reviewing court need not accept legal 7 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the 8 court to assume “the [plaintiff] can prove [he or she] has not alleged . . . .” Associated Gen. 9 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 10 On the other hand, “[w]hen there are well-pleaded factual allegations, a court should 11 assume their veracity and then determine whether they plausibly give rise to an entitlement 12 to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the complaint, 13 accepting all factual allegations as true, and drawing all reasonable inferences in favor of 14 the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 15 B. Federal Rule of Civil Procedure 12(f) 16 Under Federal Rule of Civil Procedure 12(f), the court may “strike from a pleading 17 an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 18 Fed. R. Civ. P. 12(f). The function of a Rule 12(f) motion is “to avoid the expenditure of 19 time and money that must arise from litigating spurious issues by dispensing with those 20 issues prior to trial.” Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973 (9th Cir. 21 2010). Rule 12(f) motions to strike are generally regarded with disfavor because of the 22 limited importance of pleading in federal practice, and because they are often used as a 23 delay tactic. See California Dept. of Toxic Substances Control v. Alco Pacific, Inc., 217 F. 24 Supp. 2d 1028, 1033 (C.D. Cal. 2002). Motions to strike are generally not granted unless 25 it is clear that the matter sought to be stricken could have no possible bearing on the subject 26 matter of the litigation. In re Wal–Mart Stores, Inc. Wage and Hour Litigation, 505 F. 27 Supp. 2d 609, 614 (N.D. Cal. 2007). Any doubt concerning the import of the allegations to 28 be stricken weighs in favor of denying the motion to strike. Id. 1 Moreover, “[d]ismissal of a class at the pleading stage is rare because ‘the class 2 determination generally involves considerations that are enmeshed in the factual and legal 3 issues comprising the plaintiff’s cause of action.’” Mirkarimi v. Nevada Prop.1, LLC, Case 4 No. 12-cv-2160-BTM-DHB, 2013 WL 3761530, at *4 (S.D. Cal. July 15, 2013) (quoting 5 Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982)). Thus, “[a]lthough it is not 6 per se improper for a defendant to move to strike class allegations before the motion for 7 class certification, most courts decline to grant such motions because the shape and form 8 of a class action evolves only through the process of discovery.” Simpson v. Best W. Int’l, 9 Inc., Case No. 3:12-cv-4672-JCS, 2012 WL 5499928, at *9 (N.D. Cal. Nov. 13, 2012) 10 (internal citation and quotations omitted). 11 III. DISCUSSION 12 Defendant moves to dismiss and/or strike the class allegations from the FAC, and/or 13 dismiss each of Plaintiff’s claims. The Court will address the merits of each of Defendant’s 14 requests in turn. 15 A. Motion to Strike and/or Dismiss Plaintiff’s Class Allegations 16 As an initial matter, Defendant requests the Court to dismiss and/or strike Plaintiff’s 17 class allegations. (Doc. No. 19 at 20.) Defendant contends that Plaintiff’s alleged facts fail 18 to demonstrate or suggest that any member of the putative class had similar work 19 experiences to him and fails to allege the location and type of facility where he worked, 20 the department where he worked, his job duties, his supervisors, or work schedule. (Id. 21 at 22.) In essence, Defendant asserts that Plaintiff’s class allegations pertaining to 22 commonality and typicality under Rule 23 do not meet the pleading standard for Rule 8 23 purposes. Plaintiff counters that both 12(b)(6) and 12(f) motions are an improper vehicle 24 for dismissing or striking class claims, and that Defendant has failed to explain what about 25 the class allegations are “redundant, immaterial, or impertinent and scandalous matter” as 26 required under Rule 12(f). (Doc. No. 23 at 17–20.) 27 The Court finds Plaintiff’s position persuasive. First, several courts within this 28 Circuit have held that Rule 12(b)(6) is an improper vehicle for dismissing class claims and 1 should rather be addressed through Rule 23. See Meyer v. National Tenant Network, Inc., 2 10 F. Supp. 3d 1096, 1103–04 (N.D. Cal. 2014). Moreover, while class allegations can be 3 stricken at the pleadings stage if the claim could not possibly proceed on a classwide basis, 4 “it is in fact rare to do so in advance of a motion for class certification.” Cholakyan v. 5 Mercedes–Benz USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D. Cal. 2011). Additionally, 6 although there is some inconsistency within this Circuit, the Court agrees that “a class 7 action is a procedural device, not a claim for relief.” Compare Morrelli v. Corizon Health, 8 Inc., 1:18-cv-1395-LJO-SAB, 2019 WL 918210 (E.D. Cal. Feb. 25, 2019), at *12 (finding 9 it inappropriate to either dismiss class allegations under Rule 12(b)(6) or strike them under 10 Rule 12(f)), and Meyer, 10 F. Supp. 3d at 1103–04 (denying Defendant’s motion to dismiss 11 and/or strike class action allegations because such arguments are better appropriately 12 addressed through Rule 23), with Flores v. Starwood Hotels & Resorts Worldwide, Inc., 13 No. SACV 14-1093 AG (ANx), 2015 WL 12912337 (C.D. Cal. Mar. 16, 2015) (holding 14 that the Iqbal/Twombly standard applies to class claims while reviewing motions to dismiss 15 class action complaints). 16 Accordingly, the Court DENIES WITHOUT PREJUDICE Defendant’s motion to 17 strike Plaintiff’s class allegations. However, because Plaintiff’s FAC fails to state a claim 18 upon which relief can be granted, as discussed below, Plaintiff’s class allegations 19 necessarily fail. Thus, the Court GRANTS WITHOUT PREJUDICE Defendant’s 20 motion to dismiss Plaintiff’s class allegations. 21 B. Plaintiff’s First Cause of Action for Unpaid Overtime 22 The Court starts with Plaintiff’s claim for unpaid overtime. Plaintiff asserts that 23 Defendant intentionally and willfully failed to pay Plaintiff and other purported class 24 members overtime wages, in violation of California Labor Code §§ 510 and 1198. (FAC 25 ¶¶ 33–34.) Specifically, Plaintiff states Defendant was required to pay Plaintiff and the 26 purported class members at the rate of time-and-one-half for overtime compensation for all 27 hours worked in excess of eight (8) hours in a day or more than forty (40) hours in a 28 workweek. (Id. ¶ 26.) Moreover, Defendant was required to pay Plaintiff and the purported 1 class members at a rate of two times their regular pay rate for all hours worked in excess 2 of twelve (12) hours in a day and for all hours worked in excess of eight (8) hours on the 3 seventh day of work in a workweek. (Id. ¶ 27.) Plaintiff contends he worked in excess of 4 eight (8) hours in a day and/or in excess of forty (40) hours in a week in one or both of 5 each workweek between January 9, 2017 and December 24, 2017. (Id. ¶ 30.) During this 6 time, Defendant allegedly failed to pay him for all hours of work by (1) requiring him to 7 answer phone calls from supervisors after his shifts, approximately two times per week, 8 for two to ten minutes per call; (2) requiring that Plaintiff sign paperwork after clocking 9 out for his shift; (3) interrupting Plaintiff’s meal periods with work tasks; (4) deducting 30 10 minutes from Plaintiff’s work time despite Plaintiff’s inability to take a full 30-minute meal 11 period; and (5) rounding Plaintiff’s work time in a non-neutral fashion which failed to 12 compensate Plaintiff for all hours worked. (Id. ¶ 31.) 13 Defendant seeks to dismiss this claim based on insufficient facts. (Doc. No. 19 at 14 14.) Defendant argues that Plaintiff has not sufficiently stated claims for violations of the 15 California Labor Code under Landers v. Quality Communications, Inc., 771 F.3d 638 (9th 16 Cir. 2014), as amended (Jan. 26, 2015). (See Doc. No. 19 at 14.) In reply, Plaintiff contends 17 he has provided adequate factual support by citing many specific examples of alleged 18 unpaid time, including the specific weeks in which he allegedly worked overtime and the 19 types of tasks for which Defendant allegedly failed to pay him. 20 “Although plaintiffs in these types of cases cannot be expected to allege ‘with 21 mathematical precision,’ the amount of overtime compensation owed by the employer, they 22 should be able to allege facts demonstrating there was at least one workweek in which they 23 worked in excess of forty hours and were not paid overtime wages.” Landers, 771 F.3d 24 at 646. In the employment class action context, courts have also repeatedly rejected similar 25 allegations that simply “recite[] the statutory language setting forth the elements of the 26 claim, and then slavishly repeat[] the statutory language as to the purported factual 27 allegations.” Deleon v. Time Warner Cable LLC, No. CV 09-2438 AG RNBX, 2009 WL 28 9426145, at *3 (C.D. Cal. July 17, 2009); Weigele v. FedEx Ground Package Sys., No. 06– 1 CV–1330 JLS (POR), 2010 WL 4723673 (S.D. Cal. Nov. 15, 2010) (dismissing complaint 2 alleging that “Defendant required the Plaintiffs to work overtime without lawful 3 compensation” and that “Defendant required Plaintiffs to work . . . without being given a 4 30–minute meal period for shifts of at least five hours and second 30–minute meal periods 5 for shifts of at least ten hours . . . .”); Anderson v. Blockbuster Inc., No. 2:10–cv–00158– 6 MCE–GGH, 2010 WL 1797249 (E.D. Cal. May 4, 2010) (dismissing complaint alleging 7 that “Plaintiff and class members consistently worked in excess of eight hours in a day, in 8 excess of 12 hours in a day and/or in excess of 40 hours in a week.”). 9 Here, Plaintiff has not sufficiently pled facts amounting to a claim for unpaid 10 overtime. As in Plaintiff’s original complaint, Plaintiff states “[d]uring the relevant time 11 period, Plaintiff and the other Class Members regularly worked in excess of eight (8) hours 12 in a day, and/or in excess of forty (40) hours in a week.” (FAC ¶ 29.) This claim is followed 13 by the allegation that, “[d]uring the relevant time period, Defendants intentionally and 14 willfully failed to pay overtime wages owed to Plaintiff and the other Class Members.” 15 (Id. ¶ 33.) Then finally, Plaintiff concludes “Defendants’ failure to pay Plaintiff and the 16 other Class Members the unpaid balance of overtime compensation, as required by 17 California laws, violates the provisions of California Labor Code sections 510 and 1198, 18 and is therefore unlawful.” (Id. ¶ 34.) Although Plaintiff provides examples of the types of 19 tasks which required overtime compensation, he fails to state facts about his routine shift 20 hours, his rate of pay, or an estimate of the amount of overtime he believes he is due for 21 each week he worked. See Morrelli, 2019 WL 918210, at *6 (denying motion to dismiss 22 where Plaintiff detailed the schedules they were assigned to work which were more than 8 23 hours, set out their hours and regular shifts, and estimated the amount of overtime they 24 believe they were due for each week worked.) 25 On these grounds, the Court dismisses Plaintiff’s first cause of action WITH 26 LEAVE TO AMEND. 27 /// 28 /// 1 C. Plaintiff’s Second and Third Causes of Action for Missed Meal and Rest 2 Periods 3 In his third and fourth causes of action, Plaintiff alleges that Defendant failed to 4 provide compliant meal and rest periods pursuant to Labor Code sections §§ 226.7 5 and 512(a). (FAC ¶¶ 36–55.) Specifically, Plaintiff asserts Defendant failed to provide 6 compliant meal periods by (1) “[f]ailing to adequately advise Plaintiff and the Class of their 7 meal period rights[;]” (2) “[r]outinely interrupting Plaintiff and the Class during meal 8 periods, including by calling on the phone, and requiring them to perform work duties such 9 as responding to client calls and signing paperwork;” (3) [p]ressuring Plaintiff and the 10 Class to take meal periods late and return early from meal periods to keep the production 11 line running without interruption;” and (4) “[s]etting production goals and staffing levels 12 that caused Plaintiff and the Class to take late or short meal periods.” (Id. ¶ 41.) Defendant 13 counters that Plaintiff fails to identify any specific instances in which Defendant allegedly 14 failed to provide Plaintiff a meal or rest period, or failed to pay Plaintiff meal or rest period 15 premiums. (Doc. No. 19 at 17.) Plaintiff responds that the facts in the FAC are sufficient 16 to support Plaintiff’s second and third causes of action. (Doc. No. 23 at 12.) 17 The Court finds that Plaintiff has not sufficiently pled facts amounting to claims for 18 missed meal and rest periods. Plaintiff fails to explain how each of these actions prevented 19 employees from taking their meal or rest breaks. For example, Plaintiff’s allegation that 20 Defendant failed to adequately advise Plaintiff and the purported class of their meal period 21 rights is insufficient, without more information, as to how this affected their rights under 22 the meal and rest period provisions. Similarly, the alleged production goals and staffing 23 levels lack specificity in its effect on Plaintiff’s inability to take his meal and rest breaks. 24 See Johnson v. Winco Foods, LLC, No. ED CV 17-2288-DOC (SHKx), 2018 WL 6017012, 25 at *10 (C.D. Cal. Apr. 2, 2018) (although Plaintiff alleged a policy of “understaffing,” 26 Plaintiff failed to “identify any specific instance in which Defendants failed to provide him 27 a meal or rest break or failed to pay him meal or rest break premiums in compliance with 28 state law.”). Regarding Defendant allegedly pressuring Plaintiff and the purported class to 1 take late meal periods and return early, Plaintiff fails to provide sufficient detail to support 2 a reasonable inference that Defendant violated California Labor Code §§ 226.7 and 512(a). 3 Plaintiff’s complaint lacks any allegation of at least one meal or rest break where he worked 4 through the break without compensation. See Freeman v. Zillow, Inc., No. SACV 5 14-01843-JLS (RNBx), 2015 WL 5179511, at *5 (C.D. Cal. Mar. 19, 2015). Thus, the 6 Court dismisses the second and third causes of action WITH LEAVE TO AMEND. 7 D. Plaintiff’s Fourth Cause of Action for Failure to Pay Minimum Wages 8 In Plaintiff’s fourth claim, he asserts that Defendant violated California Labor Code 9 §§ 1194, 1197, and 1197.1, which provides the minimum wage to be paid to employees 10 and that the payment of a lesser wage than the minimum so fixed is unlawful. (FAC ¶ 57.) 11 Specifically, Plaintiff alleges Defendant regularly failed to pay minimum wage by: by 12 (1) requiring him to answer phone calls from supervisors after his shifts, approximately 13 two times per week, for two to ten minutes per call; (2) requiring that Plaintiff sign 14 paperwork after clocking out for his shift; (3) interrupting Plaintiff’s meal periods with 15 work tasks; (4) deducting 30 minutes from Plaintiff’s work time despite Plaintiff’s inability 16 to take a full 30-minute meal period; and (5) rounding Plaintiff’s work time in a non-neutral 17 fashion which failed to compensate Plaintiff for all hours worked. (Id. ¶ 58.) 18 The Court finds that Plaintiff’s claim for failure to pay minimum wages is derivative 19 of Plaintiff’s claim for failure to provide meal and rest breaks and pay meal and rest break 20 premiums. Therefore, because the Court dismissed Plaintiff’s claim for failure to provide 21 meal and rest breaks, the Court also dismisses Plaintiff’s claim for failure to pay minimum 22 wages on those allegations premised on Defendant’s alleged failure to compensate Plaintiff 23 for missed meal and rest breaks WITH LEAVE TO AMEND. See Johnson, 2018 WL 24 6017012, at *13. 25 E. Plaintiff’s Fifth Cause of Action for Failure to Pay Wages Upon 26 Termination 27 Plaintiff’s fifth cause of action alleges that Defendant violated California Labor 28 Code §§ 201, 202, and 203 by willfully failing to pay Plaintiff and other purported class 1 members all of their wages within seventy-two hours of their leaving Defendant’s employ. 2 (FAC ¶¶ 64–65.) Defendant counters that because Plaintiff’s allegations are based on the 3 underlying alleged Labor Code violations, which have been dismissed by the Court, that 4 this claim should also fail. (Doc. No. 19 at 18.) Here, Plaintiff fails to establish that 5 Defendant “willfully” failed to pay those wages upon termination, which is required under 6 California Labor Code § 203. See Johnson, 2018 WL 6017012, at *16. Plaintiff merely 7 makes the conclusory statement that Defendant “intentionally and willfully failed to pay 8 Plaintiff and other Class Members . . .” without providing details as to how Defendant 9 intentionally failed to pay wages upon termination. (FAC ¶ 64.) Thus, the Court dismisses 10 the fifth cause of action WITH LEAVE TO AMEND. 11 F. Plaintiff’s Sixth Cause of Action for Unreimbursed Business Expenses 12 Plaintiff next asserts that Defendant intentionally and willfully failed to reimburse 13 Plaintiff and other purported class members’ business-related expenses, in violation of 14 California Labor Code §§ 2800 and 2802. (FAC ¶ 71.) Plaintiff alleges that Defendant 15 required Plaintiff and the purported class to use their personal mobile phones for work- 16 related purposes and purchase work boots with a reimbursement voucher which did not 17 cover the full purchase price of the boots. (Id. ¶ 70.) Defendant contends Plaintiff’s 18 allegations are insufficient because he fails to allege facts which show Defendant failed to 19 reimburse Plaintiff for necessary expenses which he personally incurred, and fails to allege 20 facts that show these materials fall within the scope of Labor Code § 2802 as a “necessary 21 expense.” (Doc. No. 19 at 19.) 22 Labor Code § 2802(a) provides that “[a]n employer shall indemnify his or her 23 employee for all necessary expenditures or losses incurred by the employee in direct 24 consequence of the discharge of his or her duties.” “Necessary expenditures or losses” 25 include all “reasonable costs.” Cal. Lab. Code § 2802(c). “To demonstrate that an employer 26 has violated § 2802, a plaintiff must show that: (1) he or she is an employee; (2) he or she 27 incurred necessary expenses either in the discharge of his or her duties or in obeying the 28 employer's directions; and (3) the employer failed to reimburse the plaintiff for such 1 expenses.” Dismone v. Allstate Ins. Co., No. C 96–36606 CW, 1999 WL 33226248, at *7 2 (N.D. Cal. Sept.14, 1999); see also Gattuso v. Harte–Hanks Shoppers, Inc., 42 Cal. 4th 3 554, 567–68 (2007). Additionally, the employer “must either know or have reason to know 4 that the employee has incurred [the] expense.” Marr v. Bank of Am., No. C 09–5978, 2011 5 WL 845914, at *1 (N.D. Cal. Mar. 8, 2011). 6 The Court finds Plaintiff has failed to sufficiently specify both how he was required 7 to use his cell phone and then denied reimbursement for the usage, and what expenses he 8 incurred related to the work boots. See Wert v. U.S. Bancorp, No. 13-cv-3130-BAS(BLM), 9 2014 WL 2860287, at *6 (S.D. Cal. June 23, 2014). Moreover, Plaintiff has failed to allege 10 facts showing that the costs for the business-related materials fall within the scope of Labor 11 Code section 2802 as a “necessary expense.” Id. Thus, the Court dismisses the sixth cause 12 of action WITH LEAVE TO AMEND. 13 G. Plaintiff’s Seventh Cause of Action for Unfair Competition 14 Plaintiff’s seventh cause of action asserts Defendant’s conduct amounts to unfair 15 competition, in violation of California Business and Professions Code §§ 17200, et. seq. 16 (FAC ¶¶ 73–74.) Specifically, Plaintiff alleges Defendant’s policies and practices of 17 requiring employees to work overtime and through their meal and rest periods, without 18 proper compensation, and of failing to timely pay wages amount to unlawful business acts. 19 (Id. ¶ 75.) Defendant counters that because Plaintiff’s claim for unfair competition is based 20 entirely on his underlying claims for overtime, minimum wages, failure to provide meal 21 periods, and failure to provide rest periods, which the Court has dismissed, his derivative 22 unfair competition claim should similarly fail. (Doc. No. 19 at 19.) Plaintiff replies that he 23 has alleged sufficient facts to withstand the motion to dismiss. (Doc. No. 23 at 16.) 24 The Court finds that Plaintiff’s claim for unfair competition is derivative of 25 Plaintiff’s first through sixth causes of action. Therefore, because the Court dismissed 26 Plaintiff’s first through sixth causes of action, the Court also dismisses Plaintiff’s claim for 27 unfair competition WITH LEAVE TO AMEND. 28 /// I IV. CONCLUSION 2 For the reasons set forth above, the Court DENIES WITHOUT PREJUDICE 3 ||Defendant’s motion to strike Plaintiffs class allegations, and GRANTS Defendant’s 4 || motion to dismiss Plaintiff's FAC. (Doc. No. 18.) Should Plaintiff choose to do so, where 5 leave is granted, he must file an amended complaint curing the deficiencies noted herein 6 || by October 15, 2021. 7 8 IT IS SO ORDERED. 9 || Dated: October 4, 2021 © 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12