Derrick Byrd v. Masonite Corporation et al

Filing 24

MINUTE Order (1) GRANTING Defendants Motion to Dismiss (Doc. No. 12 ); (2) DENYING AS MOOT Plaintiffs Motion to Remand (Doc. No. 14 ); and (3) VACATING the February 29, 2016 Hearing (IN CHAMBERS) by Judge Jesus G. Bernal. Plaintiff may file a First Amended Complaint that attempts to correct the deficiencies identified in this Order. If Plaintiff chooses to file an amended complaint, he must do so by March 18, 2016. (See document for specifics.) (iva)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

EDCV 16-35 JGB (KKx)

Case No.

Date February 25, 2016

Title Derrick Byrd v. Masonite Corporation 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) GRANTING Defendant’s Motion to Dismiss (Doc. No. 12);
(2) DENYING AS MOOT Plaintiff’s Motion to Remand (Doc. No. 14);
and (3) VACATING the February 29, 2016 Hearing (IN CHAMBERS)

Before the Court are two motions: Defendant’s Motion to Dismiss, or in the alternative,
Motion for a More Definite Statement, (Doc. No. 12), and Plaintiff’s Motion to Remand, (Doc.
No. 14). The Court finds these matters appropriate for resolution without a hearing. See Fed. R.
Civ. P. 78; L.R. 7-15. After consideration of the papers filed in support of and in opposition to the
motions, the Court GRANTS Defendant’s Motion to Dismiss and DENIES AS MOOT
Plaintiff’s Motion to Remand. The February 29, 2016 hearing is VACATED.
I.

BACKGROUND

On November 17, 2015, Plaintiff Derrick Byrd (“Plaintiff”) filed a putative class action in
California Superior Court for the County of Riverside against Defendant Masonite Corporation
(“Defendant” or “Masonite”) and fictitious Defendants 1 through 100. (“Complaint,” Doc.
No. 1-1.) Defendant, a former employee of Masonite, alleges eleven wage and hour causes of
action against Defendant: (1) unpaid overtime, Cal. Lab. Code §§ 510, 1198; (2) unpaid meal
period premiums, Cal. Lab. Code §§ 226.7, 512(a); (3) unpaid rest period premiums, Cal. Lab.
Code § 226.7; (4) unpaid minimum wages, Cal. Lab. Code §§ 1194, 1197, 1197.1; (5) final wages
not timely paid, Cal. Lab. Code §§ 201, 202; (6) wages not timely paid during employment, Cal.
Lab. Code § 204; (7) non-compliant wage statements, Cal. Lab. Code § 226(a); (8) failure to
keep requisite payroll records, Cal. Lab. Code § 1174(d); (9) unreimbursed business expenses,
Cal. Lab. Code § 1174(d); (10) violation of California’s unfair competition law (“UCL”), Cal.
Bus. & Prof. Code § 17200; and (11) a representative action pursuant to California’s Private
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Attorney’s General Act (“PAGA”), Cal. Lab., Code §§ 2698 et seq. On January 6, 2016,
Masonite removed the action to this Court pursuant to the Class Action Fairness Act, 28 U.S.C.
§ 1332(d)(2). (“Notice of Removal,” Doc. No. 1.)
On January 13, 2016, Masonite filed a motion to dismiss, or in the alternative, a motion for a
more definite statement. (“MTD,” Doc. No. 12.) Plaintiff opposed Defendant’s motion on
February 1, 2016. (“MTD Opp.,” Doc. No. 17.) On February 8, 2016, Defendant filed a reply in
support of its motion,1 (“MTD Reply,” Doc. No. 21), as well as a request for judicial notice,2
(Doc. No. 22).
On January 19, 2016, Plaintiff filed a motion to remand the case to California Superior
Court for the County of Riverside. (“Remand Mot.,” Doc. No. 14.) On February 1, 2016,
Defendant opposed Plaintiff’s motion, (“Remand Opp.,” Doc. No. 18), and filed a request for
judicial notice,3 (Doc. No. 19). Plaintiff filed a reply memorandum in support of his motion on
February 8, 2016. (“Remand Reply,” Doc. No. 20.)
II.

MOTION TO DIMISS4

A. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may bring a motion to dismiss for
failure to state a claim upon which relief can be granted. As a general matter, the Federal Rules
require only that a plaintiff provide “‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed. R. Civ. P. 8(a)(2)); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). When evaluating a Rule 12(b)(6) motion, a court must
accept all material allegations in the complaint — as well as any reasonable inferences to be
drawn from them — as true and construe them in the light most favorable to the non-moving
party. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC Ecology v. U.S.
Dep’t of Air Force, 411 F.3d 1092, 1096 (9th Cir. 2005); Moyo v. Gomez, 32 F.3d 1382, 1384 (9th
Cir. 1994).

1

Defendant’s reply memorandum exceeds the page limitations set in this Court’s Standing
Order. (Standing Order ¶ 9, Doc. No. 11.) Accordingly, the Court stopped reading the reply after
the twelfth page. Defendant is warned that any future failure to abide by this Court’s Standing
Order or the Local Rules of this District shall result in the imposition of sanctions against it.
2

The Court declines to take judicial notice of any documents for purposes of Defendant’s
Motion to Dismiss.
3

The Court declines to take judicial notice of any documents for purposes of Plaintiff’s
Motion to Remand.
4

Unless otherwise noted, all references to “Rule” are to the Federal Rules of Federal
Procedure.
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“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555 (citations omitted). Rather, the allegations in the
complaint “must be enough to raise a right to relief above the speculative level.” Id. at 545.
“[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’
and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the
plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009); Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556). The Ninth Circuit has clarified
that (1) a complaint must “contain sufficient allegations of underlying facts to give fair notice and
to enable the opposing party to defend itself effectively,” and (2) “the factual allegations that are
taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require
the opposing the party to be subjected to the expense of discovery and continued litigation.”
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Defendant moves to dismiss all eleven of Plaintiff’s causes of action on the grounds that
Plaintiff alleges no facts in support of his claims. (MTD at 5-8.) Defendant also contends that
four of Plaintiff’s causes of action are barred by the statute of limitations, and therefore those
causes of action should be dismissed without leave to amend. (Id. at 9-12.) Plaintiff opposes
Defendant’s motion. (MTD Opp. at 5-20.) Plaintiff contends both that his claims contain
sufficient factual detail and that, because of equitable tolling, his claims are not time barred. (Id.)
B. The Complaint Fails to State a Claim
Plaintiff fails to meet the minimum pleading requirements for each of the claims he asserts
against Masonite. Plaintiff alleges that he was employed by Masonite as an hourly, non-exempt
employee from approximately October 2012 to October 24, 2014 in Riverside, California.
(Complaint ¶ 24.) Other than this fact, Plaintiff does not provide any details about his work for
Masonite. He does not state what his job title was, nor does he describe any job duties he
performed while employed by Masonite. The Complaint is silent as to whether he was a full-time
or part-time employee. In each of Plaintiff’s eleven causes of action, he applies the same pattern
of (1) stating Masonite’s obligations under California law as an employer; (2) averring simply that
Masonite violated the law by failing to comply with its obligations; and (3) claiming damages and
an entitlement to penalties and other relief.
As an example, Plaintiff’s first claim alleges that Masonite violated California Labor Code
sections 510 and 1198. The relevant portions of the Complaint state: (1) “California Labor Code
section 1198 and the applicable Industrial Welfare Commission (“IWC”) Wage Order provide
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one-half or two-times that person’s regular rate of pay, depending on the number of hours
worked by the person on a daily or weekly basis”; (2) “During the relevant time period, Plaintiff
and the other class members worked in excess if eight (8) hours in a day, and/or in excess of (40)
hours in a week… Defendants intentionally and willfully failed to pay overtime wages owed to
Plaintiff and other class members”; and (3) “Pursuant to California Labor Code section 1194,
Plaintiff and the other class members are entitled to recover unpaid overtime compensation, as
well as interest, costs, and attorneys’ fees.” (Complaint ¶¶54, 58-61.)
To state a wage claim under Iqbal and Twombly, the Ninth Circuit has held that “detailed
factual allegations regarding the number of overtime hours worked are not required to state a
plausible claim.” Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 644 (2014).5 However,
plaintiffs asserting minimum wage and/or overtime wage claims “should be able to 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,” or were not paid minimum wages. Id. at 646. Further, “[a]
plaintiff may establish plausibility by estimating the length of her average workweek during the
applicable period and the average rate at which she was paid, the amount of overtime wages she
believes she is owed, or any other facts that will permit the court to find plausibility.” Id. at 645.
With respect to Plaintiff’s overtime pay claim, he fails to identify a single workweek in
which he worked in excess of eight hours in a day or forty hours in a week such that he was
entitled to overtime pay. Plaintiff does not allege his rate of pay, estimate how much overtime he
was entitled to but did not receive, nor allege whether this occurred on a consistent basis.
Moreover, he does not allege the basis for his knowledge and belief that other Masonite
employees worked shifts in excess of eight hours and/or forty hours without adequate
compensation. Indeed, the Complaint does not identify the length of any shift worked by Plaintiff
to show that Defendants’ various obligations under the Labor Code were triggered. Under
Landers, Plaintiff fails to state a claim for unpaid overtime.

5

Although Landers dealt specifically with the Fair Labor Standards Act, the language of
that statute's overtime and minimum wage provisions is similar to that of the relevant California
Labor Code sections that Plaintiff alleges. Indeed, the Ninth Circuit has applied Landers to a
complaint alleging violations of the California Labor Code in an unpublished decision, reasoning
that Landers “articulated this Court’s requirements for stating a wage claim under Twombly and
Iqbal.” Boon v. Canon Business Solutions, Inc., 592 Fed. App’x 631, 632 (9th Cir. 2015).
Additionally, district courts in this circuit have applied the Landers analysis to cases alleging
violations of the overtime provisions of the California Labor Code. See Varsam v. Laboratory
Corp. of America, No. 14cv2719 BTM (JMA), 2015 WL 4624111 at *3 (S.D. Cal. August 3, 2015);
Raphael v. Tesoro Refining and Marketing Co. LLC, No. 2:15–cv–02862–ODW, 2015 WL
4127905 at *2 (C.D. Cal. July 8, 2015). Accordingly, the Court will apply Landers to the facts
alleged in this case.

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This reasoning applies with equal force to all of Plaintiff’s claims. Nowhere in the
Complaint does Plaintiff identify a specific instance in which he was denied a minimum wage,6 a
meal period,7 or rest break.8 With regard to Plaintiff’s unpaid wages claims, Plaintiff does not
allege what final wages he was owed upon leaving Defendants’ employ,9 nor does he allege a
single instance in which Masonite failed to pay Plaintiff all wages due to him during his
employment.10 Further, Plaintiff does not identify a single deficient wage statement11 or
inadequate payroll record.12 Neither does Plaintiff allege what, if any, business-related expenses
he incurred during his employment that Masonite did not fully reimburse.13
“In the employment class action context, courts have repeatedly rejected similar allegations
that simply recite the statutory language setting forth the elements of the claim, and then
slavishly repeat the statutory language as to the purported factual allegations.” Ovieda v. Sodexo
6

The Complaint alleges only: “During the relevant time period, Defendants failed to pay
minimum wage to Plaintiff and the other class members as required, pursuant to California Labor
Code sections 1194, 1197, and 1197.1.” (Complaint ¶ 84.)
7

The Complaint states in pertinent part: “During the relevant time period, Defendants
intentionally and willfully required Plaintiff and the other class members to work during meal
periods and failed to compensate Plaintiff and the other class members the full meal period
premium for work performed during meal periods.” (Complaint ¶ 69.)
8

The Complaint alleges only: “During the relevant time period, Defendants willfully
required Plaintiff and the other class members to work during rest periods and failed to pay Plaintiff
and the other class members the full rest period premium for work performed during rest periods.”
(Complaint ¶ 78.)
9

Plaintiff states only, “During the relevant time period, Defendants intentionally and
willfully failed to pay Plaintiff and the other class members who are no longer employed by
Defendants their wages, earned and unpaid, within seventy-two (72) hours of their leaving
Defendants’ employ.” (Complaint ¶ 91.)
10

Plaintiff alleges only, “During the relevant time period, Defendants intentionally and
willfully failed to pay Plaintiff and the other class members all wages due to them…” (Complaint
¶ 98.)
11

The Complaint alleges only: “Defendants have intentionally and willfully failed to
provide Plaintiff and the other class members with complete and accurate wage statements. The
deficiencies include, but are not limited to: the failure to include the total number of hours worked
by Plaintiff and the other class members.” (Complaint ¶ 102.)
12

Plaintiff alleges only, “Defendants have intentionally and willfully failed to keep accurate
and complete payroll records showing the hours worked daily and the wages paid, to Plaintiff and
the other class members.” (Complaint ¶ 109.)
13

Plaintiff alleges only, “Plaintiff and the other class members incurred necessary businessrelated expenses and costs that were not fully reimbursed by Defendants.” (Complaint ¶ 114.)

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Operations, LLC, No. CV 12-1750-GHK SSX, 2012 WL 1627237, at *3 (C.D. Cal. May 7, 2012)
(citing DeLeon v. Time Warner Cable LLC, CV 09–2438 AG (RNBx), 2009 U.S. Dist. LEXIS
74345, at *7 (C.D. Cal. July 17, 2009)); see also, Weigele v. FedEx Ground Package Sys., No. 06–
CV–1330 JLS (POR), 2010 WL 4723673 at *4-5 (S.D. Cal. Nov. 15, 2010) (dismissing complaint
alleging that “Defendant required the Plaintiffs to work overtime without lawful compensation”
and that “Defendant required Plaintiffs to work ... without being given a 30–minute meal period
for shifts of at least five hours and second 30–minute meal periods for shifts of at least ten hours
during which Plaintiffs were relieved of all duties and free to leave the premises, nor did
Defendant pay any Plaintiffs ... one hour's pay at the employee's regular rate of pay as premium
pay compensation for failure to provide ... meal periods”); Anderson v. Blockbuster Inc., No.
2:10–cv–00158–MCE–GGH, 2010 WL 1797249 at *2-4 (E.D. Cal. May 4, 2010) (dismissing
complaint alleging that “Plaintiff and class members consistently worked in excess of eight hours
in a day, in excess of 12 hours in a day and/or in excess of 40 hours in a week” and that
“Defendants willfully failed to pay all overtime”); Harding v. Time Warner, Inc., No. 09cv1212–
WQH–WMC, 2009 WL 2575898 at *3-4 (S.D. Cal. Aug. 18, 2009) (dismissing complaint
alleging that employer failed to “pay and properly calculate overtime” and “provide
uninterrupted Meal Periods”); Deleon, 2009 U.S. Dist. LEXIS 74345, at *6 (dismissing
complaint alleging that “[d]uring the relevant time period, Defendants willfully required Plaintiff
and class members to work during meal periods and failed to compensate Plaintiff and class
members for work performed during meal periods”).
Further, Plaintiff’s unfair competition14 and PAGA15 claims are premised on his California
Labor Code claims, and for that reason, are also insufficient. With regard to Plaintiff’s class
allegations, Plaintiff merely alleges that his claims are typical of the class because Defendants’
“uniform policy/practice of wage abuse against their hourly-paid or non-exempt employees
within the State of California” resulted in Defendants’ failure “to pay them for all regular and/or
overtime wages earned, missed meal periods and rest breaks in violation of California law.”
(Complaint ¶ 31.) This conclusory allegation “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Iqbal, 129 S. Ct. at 1949. Plaintiff alleges no facts to
demonstrate or even suggest that any member of the putative class had similar work experiences.
The Complaint does not allege any facts showing that Defendants had statewide policies or
practices giving rise to Plaintiff’s causes of action such that common questions of fact and/or law
could provide class-wide answers and would be susceptible to class-wide proof. See Oveida, 2012
WL 1627237 at *4.

14

The Complaint alleges, “Defendants’ activities as alleged herein are violations of
California law, and constitute unlawful business acts and practices in violation of California
Business & Professions Code section 17200, et seq.” (Complaint ¶ 118.)
15

See Complaint ¶¶ 124-135.

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Plaintiff’s opposition to Masonite’s Motion provides no meaningful resistance to the
dismissal of his claims.16 Accordingly, the Court GRANTS Defendant’s Motion to Dismiss each
of Plaintiff’s eleven causes of action because the Complaint fails to allege “non-conclusory
factual content” from which reasonable inferences could plausibly suggest a claim entitling
Plaintiff to relief. Moss, 572 F.3d at 969.
C. Plaintiff May Amend His Complaint
In his opposition, Plaintiff requests leave to amend his Complaint should Masonite’s
Motion be granted. (MTD Opp. at 19.) Masonite argues that four of Plaintiff’s eleven causes of
action are barred by the one-year statute of limitations, and as such, those claims should be
dismissed without leave to amend. (MTD Reply at 12.) Leave to amend is only denied when “it
is clear that the complaint could not be saved by amendment.” Livid Holdings Ltd. v. Salomon
Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
California Code of Civil Procedure section 340(a) provides for a one year limitations period
for “[a]n action upon a statute for a penalty or forfeiture, if the action is given to an individual, or
to an individual and the state, except if the statute imposing it prescribes a different limitation.”
Masonite contends that Plaintiff’s sixth, seventh, eighth, and eleventh causes of action are all
pursuant to “a statute for a penalty” and thus subject to the one-year statute of limitations.
(MTD at 10.) Plaintiff’s employment with Masonite ended on October 24, 2014. (Complaint ¶
24.) Therefore, Defendants contend that any penalty claims related to his employment must
have been filed by October 24, 2015.17 Plaintiff’s Complaint was filed on November 17, 2015.
(See Complaint.)
1. Plaintiff’s PAGA Claim
Plaintiff’s eleventh cause of action is his PAGA representative claim. PAGA permits an
aggrieved employee, on behalf of himself and other current or former employees, to bring a civil
action against his employer for violations of the California Labor Code. Cal. Lab. Code §
2699(a). PAGA is limited to provisions of the Labor Code that provide for a civil penalty to be
assessed and collected by the Labor and Workforce Development Agency (“LWDA”). Cal. Lab.
Code § 2699.5. PAGA does not specify a statute of limitations. However, because PAGA claims
16

Plaintiff’s Opposition to Defendant’s Motion to Dismiss contains several legally
erroneous arguments which the Court will not address in detail. Chiefly, Plaintiff relies on cases
that pre-date Iqbal and Twombly to suggest that “[w]age and hour claims are an inherently minimal
process” that require a less stringent pleading requirement. (MTD Opp. at 12.) This is inaccurate
and unsupported by the case law upon which Plaintiff relies. Further, Plaintiff’s attempt to
factually distinguish Iqbal and Twombly from class action employment matters is unpersuasive
and contrary to the law of this circuit. (Id. at 10-13); see Landers, 771 F.3d at 641 (applying Iqbal
to a wage and hour claim).
17

By contrast, Plaintiff’s claims for actual damages are subject to a three-year statute of
limitations and are thus timely. See Cal. Code Civ. Proc. § 338.
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are claims for penalties, courts have generally found PAGA claims to be restricted by the oneyear statute of limitations. See Slay v. CVS Caremark Corp., No. 1:14-CV-01416-TLN, 2015 WL
2081642, at *5 (E.D. Cal. May 4, 2015); Jayme v. Checksmart Financial, LLC, No. 2:10–cv–
01174–GEB–KJN, 2010 WL 2900333, *2 (E.D. Cal. July 22, 2010); Yadira v. Fernandez, No. C–
08–05721 RMW, 2011 WL 2434043, *5 (N.D. Cal. June 14, 2011); Butterworth v. Am. Eagle
Outfitters, No. 1:11cv01203 LJO DLB, 2011 WL 4905641 (E.D. Cal. Oct. 13, 2011).
Notwithstanding the one year limitations period, a plaintiff pleading a PAGA claim is also
constrained by the Act’s administrative exhaustion requirements. To proceed under PAGA, an
employee must first file a complaint with the LWDA:
A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section
2699 alleging a violation of any provision listed in Section 2699.5 shall commence
only after the following requirements have been met.... The aggrieved employee or
representative shall give written notice by certified mail to the Labor and Workforce
Development Agency and the employer of the specific provisions of this code
alleged to have been violated, including the facts and theories to support the alleged
violation.
Cal. Lab. Code § 2699.3(a). The LWDA must notify the employer and the aggrieved employee
within 30 days of the postmark date of the notice whether it intends to investigate the alleged
violation. Cal. Lab. Code § 2699.3(a)(2). The aggrieved employee may only commence a civil
action after he receives notice from the LWDA that it does not intend to investigate, or, if no
notice is provided, after 33 calendar days of the postmark date of his notice to the LWDA. Id.
The time specified in section 2699.3 is “not counted as part of the time limited for the
commencement of the civil action to recover penalties under this part.” Cal. Lab. Code §
2699.3(d). This provision, therefore, operates as a toll of the one-year statute of limitations. See
Slay, 2015 WL 2081642 at *5 (“even when notice is timely-filed, a plaintiff must still file his
claims within the one year and 33 days maximum statute of limitations period”); Martinez v.
Antique & Salvage Liquidators, Inc., No. C09-00997-HRL, 2011 WL 500029, at *8 (N.D. Cal.
Feb. 8, 2011) (“PAGA allows for a tolling of the limitations period during the (at most) 33–day
period during which the LWDA is assessing, or the employer may be curing, the alleged
violations”).
Here, Plaintiff alleges that he provided written notice via certified mail to the LWDA and
Masonite on October 14, 2015, thus triggering the tolling operation of section 2699.3.
(Complaint ¶ 22.) The Complaint is silent as to whether the LWDA responded. Assuming,
therefore, the LWDA did not respond,18 the one-year limitations period was tolled from October
14, 2015 to November 16, 2015, meaning Plaintiff had until November 26, 2015 to bring his
18

Upon amendment, Plaintiff is directed to specify whether or not LWDA responded to
Plaintiff’s October 14, 2015 notice.

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PAGA claims. See Slay, 2015 WL 2081642 at *5; Martinez, 2011 WL 500029 at *8. Plaintiff
filed suit on November 17, 2016. (See Complaint.) Accordingly, Plaintiff’s PAGA claim is not
time-barred,19 and Plaintiff is permitted leave to amend this claim to attempt to correct the
pleading deficiencies identified in this Order. See § II.B.
2. Plaintiff’s Sixth and Eighth Causes of Action
Before the Court discusses whether Plaintiff’s sixth, seventh, and eighth causes of action
are time-barred, it is important to first understand the analytical framework of the California
Labor Code. There are two types of penalties recoverable under the Labor Code. Caliber
Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 377 (2005). The first type is a
“statutory penalty,” which employees may recover directly from their employers. Id., see also
Cal. Lab. Code § 203 (obligating an employer to pay an employee penalties for failing to pay
wages when due). The second type is a “civil penalty,” which are the penalties authorized by
PAGA and which are recoverable by the LWDA. Caliber, 134 Cal. App. 4th at 378; see also Cal.
Lab. Code § 225.5 (providing for a civil penalty to be paid to the Labor Commissioner). A cause
of action which seeks the recovery of a civil penalty, regardless of whether it is pleaded explicitly
as a PAGA claim, is subject to the administrative exhaustion requirements of section 2966.3.
Caliber, 134 Cal. App. 4th at 381-382 (“The absence of any reference to the Act [PAGA] in
plaintiffs’ first amended complaint does not absolve them of their duty to comply with the
administrative prerequisites to filing suit”). This means that, to the extent any cause of action is
premised on the recovery of civil penalties, the one-year statute of limitations for that claim may
be tolled if the plaintiff sends the LWDA written notice of the claim.
Turning, then, to Plaintiff’s sixth and eighth causes of action, the only remedy available for
these claims are civil penalties pursuant to PAGA. Plaintiff’s sixth cause of action is for wages
not timely paid during employment pursuant to California Labor Code section 204. The remedy
for a violation of section 204 is found under section 210 which provides that “every person who
fails to pay the wages of each employee as provided in Section[ ] 204... shall be subject to a civil
penalty.” Cal. Lab. Code § 210; see also Singer v. Becton, Dickinson & Co., No. 08CV821 IEG
(BLM), 2008 WL 2899825, at *3 (S.D. Cal. July 25, 2008). Plaintiff’s eighth cause of action is
for failure to keep requisite payroll records pursuant to Labor Code section 1174(d). The remedy
for a violation of section 1174(d) is “a civil penalty of $500.” Cal. Lab. Code § 1174.5. Because
the only remedy for a violation of these statutes is a civil penalty payable to the Labor
Commissioner, these claims are subject to the administrative exhaustion requirements of section
2699.3. Caliber, 134 Cal. App. 4th at 381-382. As such, for the same reasons Plaintiff’s PAGA
19

In its calculation of the limitations period for this claim, Masonite assumed the tolling
period specified in section 2699.3 cut off the one year limitations if the employee sends the LWDA
notice of its claim prior to the expiration of one year. (MTD at 14.) This argument is unsupported
by legal authority and contrary to the operation of tolling provisions, generally. After Plaintiff
pointed out Defendant’s calculation error, Defendant did not defend its calculation in its Reply.
Accordingly, the Court interprets Defendant’s silence on the issue as abandonment of its
erroneous calculation.
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claim generally is not time-barred, neither are Plaintiff’s sixth and eighth causes of action.
Plaintiff is therefore permitted leave to amend these claims to attempt to correct the pleading
deficiencies identified in this Order. See § II.B.
However, Plaintiff should note that because neither section 204 nor section 1174 offer a
remedy directly recoverable by Plaintiff, either by way of actual damages or a statutory penalty,
they do not offer Plaintiff a private right of action. See Slay, 2015 WL 2081642, *7-8; see also
Johnson v. Hewlett-Packard Co., 809 F. Supp. 2d 1114, 1136 (N.D. Cal. 2011) (“There is nothing
in section 204 or 210 that indicates, in ‘clear understandable, unmistakable terms,’ that a private
right of actions exists for violations of section 204”). Rather, violations of these statutes may
support only a PAGA and/or UCL claim. Id. If Plaintiff chooses to amend his Complaint as to
these causes of action, he is directed to specify that these claims are brought under PAGA and/or
UCL only.
3. Plaintiff’s Seventh Cause of Action
Plaintiff’s seventh cause of action is for non-compliant wage statements pursuant to Labor
Code section 226(a). Section 226 provides that “[a]n employee suffering injury... is entitled to
recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a
violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent
pay period...” Cal. Lab. Code § 226(e)(1). PAGA also provides civil penalties for violations of
section 226(a). Cal. Lab. Code § 2699.5.
Plaintiff’s prayer for this claim includes actual damages, statutory penalties, and civil
penalties. (Complaint Prayer ¶¶ 45-49.) His prayer for actual damages is governed by the threeyear statute of limitations. See Cal. Code Civ. P. § 338. Therefore, to the extent Plaintiff is
claiming actual damages for Masonite’s violation of section 226(a), his claim is timely. See Slay,
2015 WL 2081642, at *8 (“While a plaintiff may not seek penalties for a violation of 226(a)
because of the one year statute of limitations, claims for actual damages and injunctive relief for a
violation of 226(a) are timely because they have been brought within the three year statute of
limitations and constitute liability created by statute, other than a penalty or forfeiture”) (internal
citations omitted). Similarly, Plaintiff’s prayer for civil penalties is timely for the same reasons
his PAGA claim, generally, is timely.
However, his prayer for statutory penalties is governed by the one-year statute of
limitations in section 340(a) and does not benefit from the tolling provision of section 2699.3.
Plaintiff’s employment with Masonite ended on October 24, 2014 and he did not file suit until
November 17, 2015. On its face, Plaintiff’s section 226(a) claim for statutory penalties is timebarred. Nonetheless, Plaintiff argues that he should be permitted to amend his section 226(a)
claim due to the doctrine of equitable tolling. (MTD Opp. at 15-17.)
Under California law, the doctrine of equitable tolling suspends or extends a statute of
limitations as necessary to ensure fundamental practicality and fairness. McDonald v. Antelope
Valley Community College Dist., 45 Cal. 4th 88, 99 (2008). It applies “when an injured person
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has several legal remedies and, reasonably in good faith, pursues one.” Id. at 100 (internal
citations omitted). “Thus, it may apply where one action stands to lessen the harm that is the
subject of a potential second action; where administrative remedies must be exhausted before a
second action can proceed; or where a first action, embarked upon in good faith, is found to be
defective for some reason.” Id. (citing Collier v. City of Pasadena, 142 Cal. App. 3d 917, 923
(1983). “By alleviating the fear of claim forfeiture, it affords grievants the opportunity to pursue
informal remedies, a process we have repeatedly encouraged.... Lastly, tolling benefits the court
system by reducing the costs associated with a duplicative filing requirement, in many instances
rendering later court proceedings either easier and cheaper to resolve or wholly unnecessary.”
Id.
Equitable tolling is not limited to cases in which a plaintiff was required to pursue a
particular alternate remedy before initiating suit. Id. Rather, “regardless of whether the
exhaustion of one remedy is a prerequisite to the pursuit of another, if the defendant is not
prejudiced thereby, the running of the limitations period is tolled.” Elkins v. Derby, 12 Cal. 3d
410, 414 (1974). If otherwise appropriate, application of the equitable tolling doctrine is proper
when a plaintiff: (1) gives notice to the defendant in filing the first claim within the statute of
limitations; (2) avoids prejudice by “affording the defendant an opportunity to identify sources of
evidence” in the claim being tolled; and (3) acts reasonably and in good faith in filing the second
claim. Collier, 142 Cal. App. 3d at 924-925.
Plaintiff argues that his claim for statutory penalties under section 226(a) should be
equitably tolled because Defendant had notice of his claims under this statute pursuant to the
October 14, 2015 pre-litigation PAGA letter he sent to Masonite and the LWDA. (MTD Opp. at
16.) Plaintiff filed his suit one day after the 33-day period during which he waited for a response
from the LWDA, ostensibly demonstrating reasonable and good faith conduct by Plaintiff.
Indeed, the Northern District of California denied a motion to dismiss on these same grounds,
reasoning that the plaintiff could state a claim for equitable tolling and that it was an issue for the
jury to decide. See Sarkisov v. StoneMor Partners, L.P., No. C 13–04834 WHA, 2014 WL
1340762, *3-4 (N.D. Cal. April 3, 2014).
Similar to the allegations in this case, in Sarkisov the plaintiff had provided his employers
notice of his section 226 claim within the one-year statute of limitations when he sent them a prelitigation letter in the process of exhausting his administrative remedies under PAGA. Id. at *3.
The court found this letter gave the defendants sufficient opportunity to investigate the section
226 claim in this action, and that, although the plaintiff could have commenced both the LWDA
and private suits simultaneously, whether his decision was reasonable and in good faith was not a
question that could be conclusively resolved at the pleading stage of litigation. Id. at *5. This
Court finds the reasoning of Sarkisov persuasive.
Accordingly, the Court will permit Plaintiff an opportunity to amend his section 226 claim
as it relates to statutory penalties. However, in the amended complaint, Plaintiff must
specifically plead the facts supporting his equitable tolling theory if Plaintiff wishes to recover
statutory penalties. See Mills v. Forestex Co., 108 Cal. App. 4th 625 (2003).
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III.

MOTION FOR A MORE DEFINITE STATEMENT

Defendant alternatively moves this Court to require Plaintiff to provide a more definite
statement pursuant to Rule 12(e). (MTD at 8.) Rule 12(e) provides that a "party may move for a
more definite statement of a pleading to which a responsive pleading is allowed but which is so
vague or ambiguous that the party cannot reasonably prepare a response." Because the Court is
granting Defendant’s motion to dismiss in its entirety, Defendant’s motion for a more definite
statement is DENIED AS MOOT.
However, for future motion practice, Defendant is instructed that Rule 12(e) motions are
disfavored, and ordinarily restricted to situations where a pleading suffers from unintelligibility
rather than want of detail. Medrano v. Kern Cnty. Sheriff's Officer, 921 F. Supp. 2d 1009, 1013
(E.D. Cal. 2013). The Court must deny the motion if the complaint is specific enough to notify a
defendant of the substance of the claim being asserted. See Bureerong v. Uvawas, 922 F. Supp.
1450, 1461 (C.D. Cal. 1996). The Court may also deny the motion if the detail sought is
obtainable through the discovery process. Beery v. Hitachi Home Electronics (America), Inc.,
157 F.R.D. 477, 480 (C.D. Cal. 1993). Defendant should take note of this case law prior to
moving for a more definite statement in the future.
IV.

MOTION TO REMAND

Plaintiff moves the Court to remand the case to California Superior Court for the County of
Riverside on the grounds that Defendant has not established that the amount in controversy
exceeds $5 million. (Remand Mot. at 1.) Because Defendant’s calculations of the amount in
controversy are dependent upon causes of action that the Court is dismissing in this Order,
Plaintiff’s motion is DENIED AS MOOT. Plaintiff may renew his motion to remand after such
time as Plaintiff is able to state a claim for relief.
V.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED. (Doc. No. 12.)
Plaintiff may file a First Amended Complaint that attempts to correct the deficiencies identified
in this Order. If Plaintiff chooses to file an amended complaint, he must do so by March 18,
2016.
Plaintiff’s Motion to Remand is DENIED AS MOOT. (Doc. No. 14.) Plaintiff may renew
his motion to remand after such time as Plaintiff is able to state a claim for relief.
The February 29, 2016 hearing is VACATED.
IT IS SO ORDERED.

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