Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC et al

Filing 27

MINUTES (IN CHAMBERS): ORDER Re Defendants' Motion to Dismiss Case #11 ; Plaintiff's Motion to Remand Case #14 by Judge Michael W. Fitzgerald: The Court concludes that the case was properly removed and this Court has jurisdiction. The Motion to Remand is DENIED. Having reviewed the Complaint, the Court concludes that the allegations fail to sufficiently plead any Claim for Relief. The Motion to Dismiss is GRANTED in its entirety with leave to amend. Plaintiff is warned that no further leave to amend will be granted. The next amended Complaint shall be filed on or before 5/8/2017. (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
PRESENT: HONORABLE MICHAEL W. FITZGERALD, U.S. DISTRICT JUDGE
Rita Sanchez
Courtroom Deputy
ATTORNEYS PRESENT FOR PLAINTIFFS:
None Present

None Present
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANTS:
None Present

PROCEEDINGS (IN CHAMBERS): ORDER RE DEFENDANTS’ MOTION TO
DISMISS CASE [11]; PLAINTIFF’S MOTION
TO REMAND CASE [14]
Before the Court are two motions. First, Defendants filed a Motion to Dismiss
on March 3, 2017. (“Motion to Dismiss,” Docket No. 11). Plaintiff filed an
Opposition and Defendants filed a Reply. (Docket Nos. 15, 16).
In addition, on March 17, 2017, Plaintiff filed a Motion to Remand the case to
the California Superior Court in which it was originally filed. (“Motion to Remand,”
Docket No. 14). Defendants filed an Opposition and Plaintiff filed a Reply. (Docket
Nos. 18, 19). With the Court’s permission Defendants filed a Sur-Reply. (Docket No.
25).
The Court held a hearing on April 24, 2017. For the reasons stated below, the
Court DENIES the Motion to Remand and GRANTS the Motion to Dismiss with
leave to amend. The Court concludes Defendants’ Notice of Removal was timely filed
and the amount in controversy adequately pleaded therein. The Complaint does not
state a claim for relief and must be dismissed.
I.

BACKGROUND

In November 2016, Plaintiff filed a putative class action against Defendants
Tesoro Refining & Marketing Company (“Tesoro”) and BP Pipelines North America
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CIVIL MINUTES—GENERAL
1

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
(“BP”) in California Superior Court asserting claims for failure to pay overtime; failure
to provide meal breaks; failure to provide rest breaks; failure to pay all final wages;
failure to timely pay regular wages; failure to provide accurate wage statements; and
violation of California’s Unfair Competition Law. (Complaint, Docket No. 1-1). The
class is defined in the complaint as
Current and former Tesoro and BP all non-exempt warehouse
workers who were employed at Tesoro and BP’s Long Beach
facility at any time beginning four years preceding the filing
of the Complaint in this action through final judgment in this
action.
(Id. ¶ 35).
II.

MOTION FOR REMAND

The Court first addresses the jurisdictional questions present in Plaintiff’s
Motion to Remand. Defendant has asserted jurisdiction under both the Class Action
Fairness Act (“CAFA”) and the Court’s federal question jurisdiction.
A.

CAFA Jurisdiction
1. Legal Standard

Under CAFA, the Court has “original jurisdiction of any civil action in which
the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest
and costs, and is a class action in which” there is minimal diversity. 28 U.S.C. §
1332(d)(2).
Removal must be accomplished within thirty days after “the receipt by a
defendant, through service or otherwise, of a copy of the initial pleading setting froth
the claim for relief upon which such action or proceed is based . . . .” 28 U.S.C. §
1446(b)(1). To remove a case to federal court under CAFA, a defendant must
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CIVIL MINUTES—GENERAL
2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
demonstrate that the amount in controversy exceeds $5 million. Id. § 1332(d)(2).
When determining the amount in controversy, courts first look to the complaint.
Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (addressing what
proof a defendant seeking removal must produce to prove the amount in controversy
requirement under CAFA when the complaint does not include a facially apparent
amount in controversy, and vacating district court’s remand order to allow for
additional briefing). If the complaint is silent as to the amount in controversy, then the
defendant bears the burden of showing by a preponderance of the evidence that the
amount in controversy meets the jurisdictional threshold. Id.
The Supreme Court held, however, that when a defendant removes an action
pursuant to CAFA, the “defendant’s notice of removal need include only a plausible
allegation that the amount in controversy exceeds the jurisdictional threshold” of $5
million. Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014)
(emphasis added). Pursuant to 28 U.S.C. § 1446(a), the notice of removal need only
“contain[] a short and plain statement of the grounds for removal,” which is a standard
that “tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules
of Civil Procedure.” Id. at 553.
Where, as here, a plaintiff has challenged the amount in controversy asserted by
a defendant, “both sides submit proof and the court decides, by a preponderance of the
evidence, whether the amount-in-controversy requirement has been satisfied.” Id.
“Under this system, CAFA’s requirements are to be tested by consideration of real
evidence and the reality of what is at stake in the litigation, using reasonable
assumptions underlying the defendant’s theory of damages exposure.” Ibarra, 775
F.3d at 1198.
There is no presumption against removal jurisdiction in CAFA cases. Dart
Cherokee Basin Operating Co., LLC, 135 S. Ct. at 554.
2. Timeliness

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CIVIL MINUTES—GENERAL
3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
Plaintiff first argues that Defendants failed to timely remove the action because
more than thirty days passed between service upon Defendant Tesoro and Tesoro’s
filing of the Notice of Removal. Plaintiff asserts that Tesoro was served on January
12, 2017. The Notice of Removal was filed on February 24, 2017. (Docket No. 1).
Thus, Plaintiff argues, the case was not timely removed and remand is required. The
Remand Motion fails to mention, however, that the parties signed a stipulation in state
court agreeing that service on Tesoro was not completed until January 25, 2017. (Ex.
A to Defendants’ Opposition to Remand Motion). The parties had contested whether
service had been properly made upon Tesoro’s headquarters in Texas or if service on
Tesoro’s registered agent for service of process in California was necessary. To settle
this dispute the parties agreed to the stipulation, which states that the parties agree “for
all purposes” that service “was completed by Plaintiff . . . after Plaintiff’s mailing [of
the summons and complaint] to Tesoro’s San Antonio, Texas corporate office on
January 25, 2017 . . . .” (Id. at 4).
Plaintiff argues in his Reply that parties may not stipulate to extend the thirtyday window for removal due to its jurisdictional nature. While this may be true,
Tesoro never sought to extend the removal period through stipulation. Rather, Tesoro
and Plaintiff settled a reasonable dispute concerning service and stipulated that service
was completed on January 25 and not earlier. Tesoro relied on that stipulation in filing
its Notice of Removal on February 24. Plaintiff presents no argument as to why the
stipulation should be binding in this litigation, or why Tesoro acted unreasonably in
relying on that agreement.
The Court concludes that the Notice of Removal was timely filed.
3. CAFA Exceptions
Plaintiff’s Remand Motion argues that two exceptions to CAFA’s grant of
federal jurisdiction apply here: the local controversy and home-state controversy
exceptions. In the context of this case, both of these exceptions rely on Tesoro being a
citizen of California for diversity purposes. In support of that argument Plaintiff urges
the Court to apply the “substantial predominance” test, citing Tosco Corp. v.
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CIVIL MINUTES—GENERAL
4

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
Communities for a Better Env't, 236 F.3d 495, 497 (9th Cir. 2001). That decision,
however, was abrogated over seven years ago by Hertz Corp. v. Friend, 559 U.S. 77
(2010), which specifically rejected the substantial predominance test. Perhaps seeing
the error of his ways, Plaintiff did not reassert either of the CAFA exceptions in his
Reply.
The Court rejects Plaintiff’s argument concerning the CAFA exceptions.
4. Amount in Controversy
Plaintiff’s final challenge to Defendants’ invocation of CAFA jurisdiction
concerns the amount in controversy requirement. Plaintiff argues that Defendant has
failed to show by a preponderance of the evidence that the amount in controversy
exceeds $5 million in this case. Specifically, Plaintiff objects to Defendants’
assumption that each of the putative class members worked, on average during the four
year period, an addition twelve minutes of unpaid overtime. In addition, Plaintiff
challenges Defendants’ assumption of a 50% violation rate. Using these assumptions
Defendants arrived at a figure of $5,542,459.31 for the amount in controversy.
Defendants may use reasonable assumptions in calculating the amount in
controversy for purposes of removal. See, e.g., Oda v. Gucci Am., Inc., 2015 WL
93335, at *5 (C.D. Cal. Jan. 7, 2015) (“[A] defendant may calculate the amount in
controversy based on reasonable assumptions.”). Here Defendants have provided a
declaration in support of their calculations: the Declaration of Karen Kawano (Docket
No. 1-7) provides a summary of the underlying data derived from Tesoro’s business
records. This type of evidence is sufficient to satisfy the standard described above.
See Vasquez v. Blue Cross of Cal., 2015 WL 2084592, at *5 (C.D. Cal. May 5, 2015)
(“Plaintiffs suggest that without providing account premium data or other specific
values, Defendant cannot meet its burden. This is not, however, the burden established
by the Ibarra court. Defendant has provided sufficient evidence to support its claim
that the amount in controversy is met.”). The Court agrees with Defendants that their
50% violation rate assumption is reasonable here. As they note, Plaintiff’s Complaint
could be reasonably read to allege a 100% violation rate. The Complaint notes that
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CIVIL MINUTES—GENERAL
5

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
Defendants “did not provide” Plaintiff and the other class members “a thirty minute
meal period for every five hours worked,” and that this was Defendants’ “common
practice.” (Complaint ¶¶ 13, 23, 36.c, 46–47). It also alleges that Defendants had a
practice of “requiring employees to work for four hours and more without a rest
period” and that Defendants had a “common practice” of failing to provide required
breaks. (Id. ¶¶ 20–21, 52–53). As Defendants note, numerous other courts have found
similar allegations supportive of a 100% violation rate assumption. See, e.g., Mejia v.
DHL Express (USA), Inc., 2015 WL 2452755, at *4 (C.D. Cal. May 21, 2015)
(“Plaintiff's FAC does not contain any allegations that suggest a 100% violation rate is
an impermissible assumption.”). The Court acknowledges that Plaintiff’s allegations
of a “common practice” are not the same as allegations of a “uniform practice,” which
might better support a 100% violation rate assumption. But Defendants have
adequately taken this into account by assuming only a 50% violation rate.
Plaintiff also takes issue with Defendants’ assumption of 12 minutes per day, or
about one hour a week, of unpaid overtime for each putative class member. Here the
Complaint alleges that class members “often worked before and after their scheduled
shifts.” (Complaint ¶¶ 13, 15–17). The Kowano Declaration confirms, based on
Defendants’ own data, that the average hours worked by putative class members in the
three- and four-year periods preceding the filing of the Complaint exceeded eight
hours. Thus, any unpaid time would be payable at the overtime premium rate, which
Defendants state applies to hours worked in excess of eight per day. This Court
previously approved of such an estimate:
Defendant estimates that these allegations place in controversy at least one hour
of overtime pay per week per class member. This estimate is reasonable and
conservative given the allegations in the Complaint, which allege a uniform and
pervasive policy of failure to pay overtime. See Herrera v. Carmax Auto Superstores
California, LLC, 2014 WL 12586254, at *6 (C.D. Cal. June 12, 2014) (“The
Complaint alleges that much of the overtime that Plaintiffs were required to work
occured off the clock; accordingly, Defendant cannot be expected to produce evidence
of how often overtime violations may occur. Defendant must be entitled to monetize
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CIVIL MINUTES—GENERAL
6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
this claim with a reasonable and conservative estimate.”). Likewise here Defendants
can reasonably estimate the one hour per week of unpaid overtime wages.
Finally, Defendants defend their use of $36.78 as the average hourly wage for
the putative class members during the class period. Plaintiff’s Motion to Remand
argues that Defendants failed to take into account “employees who are not” putative
class members. But Defendants were correct to base their calculations on the pay of
only putative class members. The $36.78 figure is based on Defendants’ calculation of
the average pay of putative class members for the four year period ending on the filing
of the Complaint. (Kawano Decl. ¶ 21d). Ms. Kawano based this figure on her review
of an extensive amount of data held by Defendants. The Court concludes that the
evidence put forth by Defendants adequately explains the average rate.
Thus, the Court rejects each of Plaintiff’s challenges to the calculations in the
Notice of Removal. The Court notes that Plaintiff has failed to put forth any counterarguments in his Reply in response to Defendants’ lengthy explanation of their
calculations. The Reply, in fact, deals only with the timeliness issue discussed above.
Nor has Plaintiff put forth any alternative calculations of his own that might better
approximate the average wage during the relevant period.
The Notice of Removal undertook a lengthy and detailed calculation of the
amount in controversy. The Court agrees with each of the assumptions and rejects
Plaintiff’s challenges to the calculations. Plaintiff does not dispute any other element of
jurisdiction under CAFA. The Notice of Removal notes that the size of the class
exceeds 300 members. Plaintiff is a citizen of California, while Defendant BP is a
citizen of Maine and Illinois. Thus Plaintiff and at least one Defendant are citizens of
different states, meeting the minimal diversity requirement.
Accordingly, the Court concludes that Defendants properly removed this action
under CAFA and the Court has jurisdiction over the case. The Court need not address
Defendants’ other asserted basis for jurisdiction under the Labor Management
Relations Act.
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CIVIL MINUTES—GENERAL
7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
The Motion to Remand is DENIED.
III.

MOTION TO DISMISS

Having concluded that the Court possesses jurisdiction over the action under
CAFA, the Court will now rule on Defendants’ Motion to Dismiss.
As an initial matter, Defendants ask the Court to take judicial notice of the
Kawano Declaration attached to the Notice of Removal for purposes of the Motion to
Dismiss. Under Rule 12(d) of the Federal Rules of Civil Procedure, if the Court
considers matters outside the pleadings in ruling on a motion to dismiss that motion
must be converted into one for summary judgment. Fed. R. Civ. P. 12(d). As a
general rule, “a district court may not consider any material beyond the pleadings in
ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th
Cir. 2001). The only exceptions to this rule are for (1) material which is submitted
with or necessarily relied on in the complaint and (2) matters of public record. Id. at
688–89. The Kawano Declaration does not fall under either exception. The Court will
not consider the Kawano Declaration in ruling on the Motion to Dismiss. A motion for
summary judgment would be proper only after allowing both parties to conduct
discovery and submit declarations and affidavits. See Hitek Software, LLC v. Sunrise
Broad. of N.Y., Inc., 2013 WL 12137879, at *3 (C.D. Cal. Feb. 21, 2013) (“Because
the Court cannot consider the DeSilva declarations on a motion to dismiss and a
motion for summary judgment is improper at this time, the Court DENIES Hitek's
request to convert this motion to dismiss into one for summary judgment.”); see also
Alexander v. Chase Bank NA, 2016 WL 1658286, at *2 (W.D. Wash. Apr. 26, 2016)
(“The declaration and exhibits are not proper to consider on a motion to dismiss, and
the Court therefore has not relied upon them in making its ruling.”).
At the hearing, BP’s counsel argued that, even without the Declaration, the
Court should dismiss the claims because Plaintiff’s briefing seems to concede that BP
sold its assets to Tesoro in 2013. Therefore, BP argues, the claims against it must
necessarily be outside the applicable statute of limitations, which in BP’s view is three
years. Plaintiff responded at the hearing that the statute of limitations for its UCL
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CIVIL MINUTES—GENERAL
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
claims is four years, and thus those claims might survive. The Court concludes that the
issue of the timeliness of the claims against BP is better dealt with at a later stage in the
ligitation, possibly on a motion for summary judgment. BP is free to raise the issue of
timeliness again at a later stage.
As stated, Plaintiff’s Complaint alleges seven claims for relief against
Defendants related to various wage and hour claims. (Docket No. 1-1).
A.

Legal Standard

“Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a
cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable
legal theory.” Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013)
In ruling on the Motion under Rule 12(b)(6), the Court follows Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter . . .
to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). The Court must disregard allegations that are legal
conclusions, even when disguised as facts. See id. at 681 (“It is the conclusory nature
of respondent’s allegations, rather than their extravagantly fanciful nature, that
disentitles them to the presumption of truth.”); Eclectic Properties E., LLC v. Marcus
& Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014). “Although ‘a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof is improbable,’
plaintiffs must include sufficient ‘factual enhancement’ to cross ‘the line between
possibility and plausibility.’” Eclectic Properties, 751 F.3d at 995 (quoting Twombly,
550 U.S. at 556–57) (internal citations omitted).
The Court must then determine whether, based on the allegations that remain
and all reasonable inferences that may be drawn therefrom, the Complaint alleges a
plausible claim for relief. See Iqbal, 556 U.S. at 679; Cafasso, U.S. ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 (9th Cir. 2011). “Determining whether a
complaint states a plausible claim for relief is ‘a context-specific task that requires the
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CIVIL MINUTES—GENERAL
9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
reviewing court to draw on its judicial experience and common sense.’” Ebner v.
Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016) (as amended) (quoting Iqbal, 556 U.S. at
679). Where the facts as pleaded in the Complaint indicate that there are two
alternative explanations, only one of which would result in liability, “plaintiffs cannot
offer allegations that are merely consistent with their favored explanation but are also
consistent with the alternative explanation. Something more is needed, such as facts
tending to exclude the possibility that the alternative explanation is true, in order to
render plaintiffs’ allegations plausible.” Eclectic Properties, 751 F.3d at 996–97; see
also Somers, 729 F.3d at 960.
B.

Analysis
1. Failure to Pay Overtime Wages

Plaintiff’s First Claim for Relief is for failure to pay overtime wages in violation
of California Labor Code section 510. In the context of the Federal Labor Standards
Act, the Ninth Circuit has held that in order to state a claim for failure to pay overtimes
wages a plaintiff must specify a particular work week in which they were not paid
properly. See Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 646 (9th Cir. 2014)
(“[Plaintiffs] should be able to allege facts demonstrating there was at least one
workweek in which they worked in excess of forty hours and were not paid overtime
wages.”); Boon v. Canon Bus. Sols., Inc., 592 F. App'x 631, 632 (9th Cir. 2015)
(“Landers also held that plaintiffs in these types of cases must allege facts
demonstrating that there was at least one workweek in which they worked in excess of
forty hours and were not paid overtime wages.”). This holding has been applied to
cases brought under the California Labor Code as well. See Tan v. GrubHub, Inc., 171
F. Supp. 3d 998, 1006 (N.D. Cal. 2016) (“Although Landers discussed FLSA claims,
its reasoning applies to California Labor Code claims as well. Plaintiffs give the Court
no reason to depart from the well-reasoned logic of these other courts in extending
Landers to various Labor Code claims.”) (citation omitted).
Defendants point out that Plaintiff’s Complaint fails to specify facts showing at
least one work week in which overtime wages were not properly paid. In his
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CIVIL MINUTES—GENERAL
10

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
Opposition Plaintiff merely pastes the allegations from the Complaint without
explaining why they are sufficient under the Landers standard. The Court agrees with
Defendants that the overtime wages allegations are insufficiently pleaded and must be
dismissed.
The Motion to Dismiss additionally argues that as to the claims against
Defendant BP the dismissal should be without leave to amend because Plaintiff’s
claims are time-barred. To support this argument BP cites the Kawano Declaration.
But as discussed earlier that declaration is not properly subject to judicial notice and
cannot be considered here without converting the motion into one for summary
judgement. Because this affirmative defense cannot be ruled on without considering
facts not properly subject to judicial notice, the Court declines to do so at this time.
See Dinh v. Citibank, N.A., 2013 WL 12137715, at *2 (C.D. Cal. Oct. 15, 2013) (“A
motion to dismiss under Rule 12(b)(6) cannot be granted based upon an affirmative
defense unless that ‘defense raises no disputed issues of fact.’ Scott v. Kuhlmann, 746
F.2d 1377, 1378 (9th Cir. 1984). For example, a motion to dismiss may be granted
based on an affirmative defense where the allegations in a complaint are contradicted
by matters properly subject to judicial notice.”).
Accordingly, the Court GRANTS the Motion to Dismiss with respect to
Plaintiff’s First Claim for Relief. The Motion is granted with leave to amend.
2. Meal Break Violations
Plaintiff’s Second Claim for Relief is for meal break violations under California
Labor Code sections 226.7 and 512(a). Defendants argue that Plaintiff’s allegations
here are conclusory and fail to include any facts showing Defendants prevented
Plaintiff from taking the required meal breaks. Having read the allegations the Court
agrees. The Complaint states merely that workers were required to work through meal
breaks; that Defendants did not provide the required meal breaks; and that Defendants
“suffered and permitted” Plaintiff and other employees to work through their meal
breaks. (Complaint ¶¶ 10, 14, 23).
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CIVIL MINUTES—GENERAL
11

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
Defendants cite a slew of cases dismissing similar allegations under the Landers
standard discussed above. For example, in Sanchez v. Ritz Carlton, the court dismissed
allegations of failure to pay overtime and failure to provide required meal breaks.
2015 WL 5009659, at *2–3 (C.D. Cal. Aug. 17, 2015). The court dismissed the claims
because “nothing beyond conclusory allegations ties the alleged labor-code violations
to Plaintiffs. For example, there are no allegations about either Plaintiff's schedules to
substantiate that they worked double/overtime shifts that would trigger overtime pay if
a meal were missed.” Id. The court found the allegations concerning meal breaks
similarly lacking. The Court agrees that “without factual allegations about Plaintiffs'
specific experiences, the claims against Defendants are merely ‘conceivable,’ not
‘plausible.’” Id. In Freeman v. Zillow, Inc., the court concluded that dismissal of a
meal breaks claim was warranted because “nowhere does Plaintiff allege at least one
meal or rest break where he worked through the break and was not paid for that time.”
2015 WL 5179511, at *5 (C.D. Cal. Mar. 19, 2015). The court also noted that
“nowhere does Plaintiff allege a given instance where Defendant failed to provide him
a meal or rest break in compliance with state law.” Id. As in this case, “although
Plaintiff's allegations raise the possibility of violations, Plaintiff has failed to provide
sufficient detail to support a reasonable inference that Defendant violated.” Id.
In his Opposition Plaintiff again merely pastes his allegations and asserts they
are sufficient. The Court disagrees. Accordingly the Motion a to the Second Claim for
Relief is GRANTED with leave to amend.
3. Rest Break Violations
Plaintiff’s Third Claim for Relief is for rest break violations under California
Labor Code section 226.7. For the same reasons as the claims discussed above, this
claim must be dismissed. The allegations fail to specify a specific rest break missed.
Rather the allegations state merely that Defendants failed to provide required breaks.
Such conclusory allegations are not sufficient to state a claim as discussed previously.
Accordingly, the Motion as to the Third Claim for Relief is GRANTED with
leave to amend.
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CIVIL MINUTES—GENERAL
12

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
4. Waiting Time Penalties
Plaintiff’s Fourth Claim for Relief is for failure to pay all wages due at
termination and/or waiting time penalties under California Labor Code sections 201 to
203. Section 203 of the Labor Code provides that “[i]f an employer willfully fails to
pay . . . any wages of an employee who is discharged or who quits, the wages of the
employee shall continue as a penalty from the due date thereof at the same rate until
paid . . . for [no] more than 30 days.” Cal. Labor Code § 203. Plaintiff’s allegations
merely parrot this language, stating that Defendants “failure to pay wages . . . was
willful,” and that “Defendants have failed to pay Plaintiff and Plaintiff Class in a sum
certain at the time of termination and have failed to pay these sums for thirty (30) days
thereafter.” (Complaint ¶¶ 57–58).
Courts have dismissed similarly vague claims. For example in Lopez v. Aerotek,
Inc., the plaintiff alleged only that “Defendants willfully failed to pay their workers
accrued wages due promptly upon separation, as required by Code sections 201 and
202.” 2015 WL 4504691, at *2 (C.D. Cal. July 23, 2015). The court dismissed the
claim after noting that “Plaintiff does not even generally allege what wages were
earned and paid at the time of termination, nor does she allege how and in what manner
any final wage payment was untimely under the Labor Code.” Id. The same problem
plagues Plaintiff’s allegations here. Without alleging facts that support his claim, he
cannot adequately plead a violation of section 203. See Guerrero v. Halliburton
Energy Servs., 2016 U.S. Dist. LEXIS 152141, at *22 (E.D. Cal. Nov. 2, 2016) (“The
Court agrees with Defendant that these allegations fail to satisfy the pleading
requirements of Rule 8. Importantly, Plaintiff has not alleged when his employment
with Defendant ended, nor has he alleged exactly what wages were earned and
unpaid.”).
Accordingly, the Motion as to the Fourth Claim for Relief is GRANTED with
leave to amend.
5. Failure to Pay All Hours Worked
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CIVIL MINUTES—GENERAL
13

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
Plaintiff’s Fifth Claim for Relief is for failure to pay all hours worked in
violation of California Labor Code section 204. As Defendants note, however, section
204 is concerned only with the timing of wage payments, not the nonpayment of
wages. See Singer v. Becton, Dickinson & Co., 2008 WL 2899825, at *3 (S.D. Cal.
July 25, 2008) (“Despite section 204 's use of the word ‘wages,’ section 204 does not
provide for the payment of any wages nor create any substantive right to wages. The
only right furthered by the section is the timely payment of wages.”); see also Hadjavi
v. CVS Pharmacy, Inc., 2010 WL 7695383, at *2 (C.D. Cal. Sept. 22, 2010)
(dismissing a claim for nonpayment of wages because “California Labor Code Section
204(a) deals solely with the timing of wages and not whether these wages were paid,
and Plaintiffs fail to allege that Defendants failed to maintain two regular pay days
each month, within the dates required in California Labor Code Section 204(a)”).
Because Plaintiff’s allegations concern only the nonpayment of wages, and not
whether payments occurred, as required, between certain days of the month, the claim
must be dismissed.
Accordingly, the Motion as to the Fifth Claim for Relief is GRANTED with
leave to amend.
6. Failure to Provide Accurate Wage Statements
Plaintiff’s Sixth Claim for Relief is for failure to provide accurate wage
statements in violation of California Labor Code section 226. That provision required
employers to provide an “accurate itemized statement” of the employee’s wages. Cal.
Labor Code § 226(a). An employee may bring a Claim for Relief for any “knowing
and intentional failure” by an employer to comply with the requirement. Id. §
226(e)(1). The Court agrees with Defendants that Plaintiff has failed to plead any facts
showing that any supposed violations of this section by Defendants were knowing or
intentional. The Complaint fails to allege a single factual exemplar of any inaccurate
wage statement. These allegations are too conclusory to put Defendants on notice of
any wrongdoing, and fail to state a claim as a matter of law.

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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-1554-MWF (RAOx)
Date: April 26, 2017
Title:
Onofre Soratorio v. Tesoro Refining and Marketing Company, LLC, et al.
Accordingly, the Motion as to the Sixth Claim for Relief is GRANTED with
leave to amend.
7. Violation of California Business and Professions Code section
17200
Plaintiff’s Seventh Claim for Relief is for violation of California’s Unfair
Competition Law (“UCL”). Cal. Bus. & Prof. Code § 17200. “To state a claim for an
‘unlawful’ business practice under the UCL, a plaintiff must assert the violation of any
other law.” Rubio v. Capital One Bank, 572 F. Supp. 2d 1157, 1168 (C.D. Cal. 2008).
Because the Court concludes that each of Plaintiff’s other claims for relief fail as a
matter of law, his UCL claim must fail as well.
Accordingly, the Motion as to the Seventh Claim for Relief is GRANTED with
leave to amend.
IV.

CONCLUSION

The Court concludes that the case was properly removed and this Court has
jurisdiction. The Motion to Remand is DENIED.
Having reviewed the Complaint, the Court concludes that the allegations fail to
sufficiently plead any Claim for Relief. The Motion to Dismiss is GRANTED in its
entirety with leave to amend.
Plaintiff is warned that no further leave to amend will be granted. The next
amended Complaint shall be filed on or before May 8, 2017.

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