Andrea Moppin v. Los Robles Medical Center et al

Filing 17

MINUTES (IN CHAMBERS) Order (1) DENYING Plaintiff's Motion to Remand the Case to California State Court; and (2) VACATING the September 28, 2015 hearing by Judge Jesus G. Bernal re: 13 MOTION to Remand Case to State Court. (See document for specifics.) (iva)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

EDCV 15-1551 JGB (DTBx)

Date

September 24, 2015

Title Andrea Moppin v. Los Robles Regional Medical Center, et al.

Present: The Honorable

JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings: 

Order (1) DENYING Plaintiff's Motion to Remand the Case to California
State Court; and (2) VACATING the September 28, 2015 hearing (IN
CHAMBERS)

Before the Court is Plaintiff Andrea Moppin’s Motion to Remand the Case to California
State Court. (Doc. No. 13.) The Court finds this matter appropriate for resolution without a
hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. After considering all papers submitted in
support of and in opposition to the motion, the Court DENIES Plaintiff's Motion to Remand.
The September 28, 2015 hearing is VACATED.
I.

BACKGROUND

On May 27, 2015, Plaintiff Andrea Moppin (“Plaintiff”) filed a putative wage and hour
class action against Defendants Los Robles Regional Medical Center (“Los Robles”) and
Trustaff Travel Nurses, LLC (“Trustaff”) in California state court. (“Complaint,” Doc. No. 1-1.)
The Complaint alleges the following causes of action against Defendants: (1) failure to provide
reporting time pay; (2) failure to pay overtime wages at the appropriate rate; (3) failure to
provide meal periods; (4) failure to authorize and permit rest periods; (5) failure to furnish
complete and accurate wage statements; (6) failure to timely pay wages upon termination or
resignation; (7) violation of the Private Attorneys General Act (“PAGA”); and (8) Unfair
Business Practices. (Id.)
Trustaff answered Plaintiff’s Complaint on July 30, 2015, (Doc. No. 1-4), and on July 31,
2015, filed a Notice of Removal pursuant to the Class Action Fairness Act ("CAFA"), (“Notice
of Removal,” Doc. No. 1). On August 7, 2015, Los Robles filed its Answer. (Doc. No. 10.)
Plaintiff filed a Motion to Remand the Case on August 31, 2015. (“Motion,” Doc. No. 13.)

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Trustaff opposed Plaintiff’s motion on September 4, 2015. (“Opp’n,” Doc. No. 15.) Plaintiff
filed a reply memorandum on September 14, 2015. (“Reply,” Doc. No. 16.)

II. LEGAL STANDARD
CAFA vests federal district courts with original jurisdiction of any class action in which
minimal diversity of citizenship exists between at least one member of the putative class and at
least one defendant, the class consists of at least 100 members, and the matter in controversy
exceeds $5,000,000, exclusive of interest and costs. 28 U.S.C. § 1332(d). A defendant seeking
to remove a case to a federal court must file in the federal forum a notice of removal “containing
a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). A defendant's
notice of removal need include only a plausible allegation that the amount in controversy
exceeds the jurisdictional threshold. Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.
Ct. 547, 554 (2014). Evidence establishing the amount in controversy is only required when the
plaintiff contests, or the court questions, the defendant's allegation. (Id.)
When a plaintiff contests a defendant’s allegation that the amount in controversy exceeds
$5 million, a defendant seeking removal must demonstrate, by a preponderance of evidence, that
the aggregate amount in controversy exceeds the jurisdictional threshold. Dart Cherokee, 135 S.
Ct. at 553-54. A defendant can satisfy this burden by submitting evidence outside the complaint,
including affidavits or declarations, or other “summary-judgment-type evidence relevant to the
amount in controversy at the time of removal.” Ibarra v. Manheim Investments, Inc., 775 F.3d
1193, 1197 (9th Cir. 2015). The amount-in-controversy requirement is “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.” Id. at 1198.
The removal statutes are construed restrictively, however, and the district court must
remand the case if it appears before final judgment that the court lacks subject matter
jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941); 28 U.S.C. §
1447(c). However, no presumption against removal exists in cases invoking CAFA, which
Congress enacted to facilitate adjudication of certain class actions in federal court. Dart
Cherokee, 135 S. Ct. at 554.
III. DISCUSSION
Plaintiff argues that Trustaff has failed to prove by a preponderance of the evidence that
the amount in controversy is greater than $5 million. (Motion at 3.) Trustaff disagrees. (Opp’n
at 1.)
A. PAGA Penalties
In its Notice of Removal, Trustaff includes in its calculation of the amount in controversy
Plaintiff’s claim for PAGA penalties. (Notice of Removal ¶¶ 31-34.) However, the Ninth
Circuit has recently determined that amounts sought pursuant to non-class action claims,
including claims for penalties under PAGA, cannot be aggregated to meet the amount-incontroversy requirement for purposes of CAFA removal. Yocupicio v. PAE Group, LLC, 795
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F.3d 1057, 1062 (9th Cir. 2015). Trustaff does not dispute this. Accordingly, the Court will not
consider the alleged $2,842,700 in PAGA penalties claimed in the Notice of Removal.
B. Labor Code Section 226
Labor Code section 2261 states that employers are required to provide an accurate,
itemized statement in writing each pay period detailing, among other things, all wages earned,
hours worked, and all applicable hourly rates in effect during that period. Cal. Lab. Coe §
226(a). If the employer violates any of the provisions in section 226, each individual employee
is entitled to $50 for the initial pay period in which a violation occurred and $100 for each
violation in a subsequent pay period, not exceeding an aggregate penalty of $4,000 per
employee. Cal. Lab. Code § 226(e). Thus, an individual employed for at least 41 pay periods
wherein each wage statement contained inaccurate information would be entitled to the statutory
maximum penalty of $4,000.
In Plaintiff’s complaint, she defines the “Wage Statement Class” as “[a]ll California
citizens employed by Defendants as hourly-paid non-exempt employees who, during the relevant
statutory period, were subject to Defendants’ policies and practices regarding wage statements.”
(Complaint ¶ 24(e).) Plaintiff claims that “[a]t all times herein, Defendants intentionally and
willfully failed to furnish Plaintiff and the class members with” accurate wage statements. (Id. ¶
77.) Defendants’ wage statements were allegedly inaccurate “as a consequence of, among other
things, (a) Defendants’ established policy and/or practice of failing to provide reporting time
pay, (b) Defendants’ established policy and/or practice of failing to pay overtime wages at the
appropriate rate; (c) Defendants’ established policy and/or practice of failing to provide all meal
periods, (d) Defendants’ established policy and/or practice of failing to authorize and permit all
rest periods.” (Id. ¶ 79.)
Trustaff calculates section 226 penalties in the amount of $1,329,250. (Opp’n at 9.) It
arrives at this calculation as follows: Trustaff had 94 non-exempt employees in California who
were actively employed for at least 41 pay periods since May 27, 2014.2 (Declaration of John
Ganster3 in support of Trustaff’s Opp’n (“Ganster Decl.”), Doc. No. 15-2 ¶ 5.) Their potential

1

Unless otherwise noted, all references to “section” shall refer to the California Labor

Code.
2

Plaintiff filed her Complaint in state court on May 27, 2015. (Complaint.) California
imposes a one year statute of limitations for statutory penalties, including the penalties provided
for in section 226. Cal. Code Civ. Proc. § 340. Accordingly, the relevant period for calculation
of the amount in controversy for this claim is May 27, 2014 to May 27, 2015.
3

The Court finds that the Declaration of John Ganster is the kind of “summary-judgmenttype” evidence contemplated by the Ninth Circuit in Ibarra. 775 F.3d at 1197. Ganster
described his employment relationship with Trustaff, detailed the software systems he accessed
to retrieve the data relied upon, and declared that he “utilized the custom reporting functions of
those systems” in retrieving said information, information which is “kept in the ordinary course
of business.” (Ganster Decl. ¶ 2.) Accordingly, the Court finds his declaration does not lack
(continued . . . )
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penalties for inaccurate wage statements – assuming a 100% violation rate – is the statutory
maximum of $4,000 each for a total of $376,000. (Mot. at 9.) Further, Trustaff employed 675
non-exempt employees in California for at least one, but less than 41, pay periods since May 27,
2014, and those employees were actively employed for a total of 9,870 payroll periods since
May 27, 2014. (Ganster Decl. ¶ 5.) Their potential for inaccurate wage statements – again,
assuming a 100% violation rate – is $50 each for their initial pay periods for a sub-total $33,750
and $100 each for their subsequent pay periods for a subtotal of $919,500 (9,195 x $100).
(Opp’n at 9.) Thus, Trustaff claims a total of $1,329,250 for Plaintiff’s inaccurate wage
statement claim. (Id.)
The Court finds Trustaff’s calculation is reasonable. Courts in this district have found the
amount in controversy is satisfied where a defendant assumes a 100% violation rate based on
allegations of a “uniform” illegal practice, or other similar language, and where the plaintiff
offers no evidence rebutting this violation rate. See e.g., Amaya v. Consolidated Container
Company, LP, No. 2:15–cv–03369–SVW–PLA, 2015 WL 4574909 at *2 (C.D. Cal. July 28,
2015); Unutoa v. Interstate Hotels and Resorts, Inc., No. 2:14–cv–09809–SVW–PJW, 2015 WL
898512 at *2-3 (C.D. Cal. March 3, 2015); see also Ibarra, 775 F.3d at 1199 (suggesting that an
allegation that the defendant “universally, on each and every shift” would be sufficient to ground
an assumed 100% violation rate).
Trustaff’s assumption of a 100% violation rate of section 226 is supported by allegations
in the Complaint. The Complaint alleges Defendants have “uniformly and systematically…
failed and continue to fail to timely furnish complete and accurate itemized wage statements in
violation of Labor Code section 226.” (Complaint ¶ 2(e), emphasis added.) Further, it states,
“[a]t all times herein, Defendants intentionally and willfully failed to furnish Plaintiff and the
class members with” accurate wage statements. (Id. ¶ 77, emphasis added.) That language is not
ambiguous. It accuses Defendants of issuing inaccurate wage statements “at all times” and in
regards to both Plaintiff and the class members.
Plaintiff states that her use of the phrase “at all times” does not actually mean that “all
wage statements were universally inaccurate.” (Mot. at 8.) She supports this seemingly
incongruous statement by arguing that her section 226 claim is derivative of her claims for
failure to pay reporting time wages, failure to pay overtime wages, and failure to provide meal
and rest breaks. (Id.) It is true that the language in the Complaint pertaining to the derivative
claims is limiting and does not allege that Defendants committed these violations each and every
pay period.4 However, the Complaint states, “Defendants’ wage statements were rendered
( . . . continued)
foundation and is properly supported by personal knowledge. Cf. Townsend v. Brinderson
Corp., No. CV 14–5320 FMO, 2015 WL 3970172, *5 (C.D. Cal. June 30, 2015).
4

Plaintiff’s claim for failure to pay reporting time states, “[o]n one or more occasions,
Plaintiff and members of the Reporting Time Class” were not properly compensated in
accordance with the law. (Complaint ¶ 33, emphasis added.) Plaintiff’s claim for failure to pay
overtime wages at the appropriate rate states, “Plaintiff and members of the Overtime Rate Class
routinely” worked overtime but were not properly compensated for it. (Id. ¶ 42, emphasis
(continued . . . )
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inaccurate as a consequence of, among other things, Defendants’ established policy and/or
practice” of failing to provide reporting time pay, overtime wages at an appropriate rate, and
meal and rest periods. (Complaint ¶ 79, emphasis added.) The Complaint’s use of the phrase
“among other things” plainly contemplates that Defendants’ wage statements were inaccurate for
reasons independent of the derivative claims. Therefore, Plaintiff’s attempt to circumscribe the
phrase “at all times” fails. 5
For these reasons, the Complaint’s claim for violations of section 226 explicitly alleges
universal violations as to the Wage Statement Class “at all times” during the statutory period.
See Amaya v. Consolidated Container Company, LP, No. 2:15–cv–03369–SVW–PLA, 2015 WL
4574909 (C.D. Cal. July 28, 2015) (finding that a defendant can rely on the complaint’s
allegations to ground assumed rates of violation); see also Mejia v. DHL Express (USA), Inc.,
No. CV 15-890 GHK, 2015 WL 2452755at *4 (C.D. Cal., May 21, 2015) (finding a defendant’s
use of a 100% violation rate reasonable where the plaintiff’s complaint did not contain any
allegations to suggest that a 100% violation rate is an impermissible assumption). The
Complaint’s section 226 claim accounts for $1,329,250 of Trustaff’s asserted amount in
controversy.

C. Labor Code Section 203
( . . . continued)
added.) Plaintiff’s claims for failure to provide meal and rest periods also alleges Defendants
“failed to always comply” with the requirements of the Labor Code and Industrial Welfare
Commission Wage Orders. (Id. ¶¶ 57, 59, 69, 71, emphasis added.)
5

The Court is also finds inapposite Plaintiff’s reliance on Amaya v. Consolidated
Container Company, LP, No. 2:15–cv–03369–SVW–PLA, 2015 WL 4574909 (C.D. Cal. July
28, 2015). (Motion at 10.) In Amaya, the plaintiff successfully rebutted the defendant’s
assumption of a 100% violation rate for wage statement penalties. 2015 WL 4574909 at * 4.
The defendant asserted that Amaya’s complaint suggested that an entire category of data was
absent from the wage statements, thereby supporting the defendant’s use of a 100% violation
rate. Id. In response, Amaya submitted “a large quantity of his own wage statements,”
demonstrating that there was no required category of information left out. Id. Instead, Amaya
argued his claim was based on his employer’s failure to pay all wages due. Id.
This case is not analogous. Nowhere in Plaintiff’s Complaint is it alleged that
Defendants omitted an entire category of data from its wage statements. In fact, the opposite is
true. Plaintiff’s overtime claim alleges only that the overtime rate of pay was calculated
inaccurately, not that the class was denied overtime altogether. (Complaint ¶42.) Further,
Plaintiff does not allege that her claims for failure to pay for reporting time or provide meal and
rest breaks would warrant their own line items on the wage statement. Accordingly, the Court
need not consider the single wage statement Plaintiff submitted in support of her motion. (See
Doc. No. 13-2.)

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Labor Code section 203 provides that if an employer willfully fails to pay any wages of
an employee who is discharged or quits, the wages of the employee shall continue to accrue as a
penalty from the date due from the date due up to and including thirty days thereafter. Cal. Lab.
Code § 203. The Complaint alleges Defendants "violated Labor Code section 203 by willfully
failing to pay, without abatement or reduction, all final wages owed in accordance with Labor
Code sections 201 and 202." (Complaint ¶ 7(f).) The Complaint further alleges "Defendants had
a consistent and uniform policy, practice and procedure of willfully failing to pay the earned
wages of Defendants' former employees…" (Id. ¶ 89.) Plaintiff's section 203 claim is derivative
of the Complaint's claims for failure to provide reporting time pay, failure to pay overtime wages
at the appropriate rate, and failure to provide meal and rest breaks.
Trustaff calculates the amount in controversy for Plaintiff's section 203 claim is
$3,692,656.80. (Opp'n at 8.) Of Trustaff's non-exempt employees in California, 861 employees
either quit or were discharged between May 27, 2012 and April 27, 2015.6 (Ganster Decl. ¶ 3.)
The average base hourly rate of pay for those 861 employees at the time of their termination is
$17.87. (Id.) Most of the 861 employees, including Plaintiff, were scheduled to work 12-hour
shifts, and all of the 861 employees were scheduled to work shifts of at least 8 hours. (Id.)
Trustaff calculated its estimate of the amount in controversy by multiplying the average hourly
rate of pay by 8 hours a day for each of the 861 employees terminated in the applicable statutory
period. (Opp'n at 8.) Trustaff assumes the terminated employees were owed the maximum
penalty of 30 days wage. (Id.)
It is not unreasonable to assume that every non-exempt employee terminated during the
statutory period would have experienced at least one violation – and therefore would not have
been paid certain wages due – because the Complaint alleges that Defendants' non-exempt
employees: (1) "routinely" worked overtime but were not compensated at the appropriate
overtime rate, (Complaint ¶ 42); (2) pursuant to "Defendants' pattern, practice and uniform
administration of corporate policy regarding illegal employee compensation," (id. ¶ 34), "[o]n
one or more occasions" were not compensated for reporting to work (id. ¶ 33); and (3) "as a
matter of Defendants' established company policy" worked during meal periods, (id. ¶¶ 57, 59),
and rest breaks (id. ¶¶ 69, 71). See Ibarra, 775 F.3d at 1198. (holding that the amount-incontroversy requirement can be calculated "using reasonable assumptions underlying the
defendant’s theory of damages exposure"). Other courts have allowed 100% violation rate
assumptions in similar situations where plaintiffs alleged a “laundry list” of potential violations.
6

The statute of limitations in California for claims based on the nonpayment of wages is
three years. Pineda v. Bank of Am., N.A., 50 Cal. 4th 1389, 1398 (2010) (affirming that Cal.
Code Civ. Proc. § 338 applies to section 203 claims). Not only are Plaintiffs’ claims for failure
to pay overtime and failure to pay reporting time claims for nonpayment of wages, but the claims
for failure to provide meal and rest breaks are also claims for nonpayment of wages as section
226.7 requires employers to pay employees an additional hour of pay for each workday that a
meal or rest break is not provided. See Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094,
1111 (2007) (finding that the "one additional hour of pay" due to employees pursuant to section
226.7 is a "wage" and not a "penalty").
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See Varsam v. Lab. Corp. of Am., No. 14CV2719 BTM JMA, 2015 WL 4199287, at *4 (S.D.
Cal. July 13, 2015); see also Mejia, 2015 WL 2452755, at *5–6 (allowing 100% violation rate
assumption for waiting time violations). Further, “defendants will inevitably rely on some
assumptions to support removal; a removing defendant is not required to go so far as to prove
Plaintiff's case for him by proving the actual rates of violation.” Unutoa, 2015 WL 898512 at *3;
see also Sanchez v. The Ritz Carlton, No. CV 15-3484 PSG, 2015 WL 4919972, at *3 (C.D. Cal.
Aug. 17, 2015).
Notably, Plaintiff fails to assert any different rate of violation or submit evidence
indicating a different rate of violation. See Unutoa, 2015 WL 898512 at *3 (denying motion to
remand, noting "Plaintiff fails to assert any different rate of violation or submit evidence
indicating a contrary rate…"); see also Lopez v. Aerotek, Inc., No. SACV 14–803 CJG, 2015
WL 2342558, at *3 (S.D. Cal. May 21, 2015) (denying motion to remand, noting "although
afforded the opportunity to do so on this motion, Plaintiff does not assert or suggest an
alternative violation rate on which the Court should rely").
Contrary to Plaintiff's assertion, it is not unreasonable for Trustaff to assume that each
employee would be entitled to the maximum wage penalty – thirty days – for waiting time
violations. The Complaint alleges Defendants willfully failed to pay Plaintiff and members of
the Final Pay Class their entire wages due and owing at the time of their termination and failed to
pay those sums for "up to thirty (30) days thereafter." (Complaint ¶ 90.) See Tajonar v.
Echosphere, LLC, No. CV 14-2732 LAB, 2015 WL 4064642, at *4-5 (S.D. Cal. July 2, 2015)
(finding reasonable the defendant-employer's assumption that each employee was entitled to the
maximum thirty day penalty). Further, Plaintiff submits no evidence indicating that Trustaff at
any time paid a single member of the Complaint's "Final Pay Class" wages due after the class
member's termination but before the thirty day statutory period expired. Accordingly, the Court
finds Trustaff's assumption of the thirty day maximum wage penalty reasonable. The amount in
controversy for the Complaint's section 203 claim is $3,692,656.80.
Because the amount in controversy for the section 203 and section 226 claims totals
$5,021,906.80, the Court need not analyze Trustaff's estimate of attorneys' fees. The Court also
notes that this calculation does not take into account Plaintiffs’ claims for failure to provide
reporting time pay, failure to pay overtime wages at the appropriate rate, and failure to provide
meal and rest periods. Accordingly, the amount in controversy is in fact much higher than $5
million.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Remand the Case to
California State Court. (Doc. No. 13.) The September 28, 2015 hearing is VACATED.
IT IS SO ORDERED.

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