Sims v. AT&T Mobility Services, LLC

Filing 23

ORDER LIFTING STAY signed by Judge John A. Mendez on 7/1/13 DENYING 8 Motion to Remand and GRANTING in part and DENYING in part 6 Motion to Dismiss; amended complaint due within 20 days. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP SIMS, individually
and on behalf of all others
similarly situated,

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Plaintiff,
v.

No.

2:12-CV-2702-JAM-AC

ORDER LIFTING STAY; DENYING
MOTION TO REMAND; and GRANTING
IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS.

AT&T MOBILITY SERVICES LLC, a
Delaware limited liability
company; and DOES 1 through
10, inclusive,
Defendants.
The Court previously considered Plaintiff Phillip Sims’

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Motion to Remand (Doc. # 8) and stayed this action (Order,

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February 27, 2013, Doc. # 21) pending the outcome of Standard

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Fire Ins. Co. v. Knowles, 133 S. Ct. 1345 (2013).

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decided by the Supreme Court in Standard Fire bears directly on

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this Court’s subject matter jurisdiction under the Class Action

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Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).

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Defendant’s pending Motion to Dismiss Plaintiff’s Seventh and

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Eighth Claims and Request for Punitive Damages (Doc. # 6) was not

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1

The issue

Due to the stay,

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decided.1

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(Doc. # 22) informing the Court that the Standard Fire decision

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was published and requesting a final order on Plaintiff’s Motion

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to Remand and Defendant’s Motion to Dismiss if the action is not

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remanded.

On April 3, 2013, the parties filed a stipulation

The stay on this action is accordingly lifted.

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I.

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MOTION TO REMAND

As fully discussed in the Court’s February 27, 2013 Order,
federal subject matter jurisdiction exists over this action if

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Plaintiff is not permitted to waive recovery beyond CAFA’s

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$5,000,000 jurisdictional threshold on behalf of both himself and

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absent members of the class he seeks to represent.

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unequivocally held that such waivers are ineffective and cannot

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defeat federal subject matter jurisdiction under CAFA.

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Ct. 1345, 1350–51 (2013) (holding that stipulations purporting to

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waive recovery of damages over $5,000,000 are to be ignored when

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determining a CAFA amount in controversy).

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conformity with the holding in Standard Fire and for the reasons

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given in the Court’s February 27, 2013 Order, Plaintiff’s motion

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to remand is denied because this Court has subject matter

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jurisdiction over this action.

Standard Fire

133 S.

Accordingly, in

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II.

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MOTION TO DISMISS

The substantive claims raised by Plaintiff relate to his

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former employment with Defendant.

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Plaintiff was a Retail Store

The motions to remand to dismiss were both originally
calendared for hearing on January 23, 2013, but the matters were
submitted without oral argument pursuant to Eastern District of
California Local Rule 230(g).
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Manager (“RSM”) for one of Defendant’s retail locations.

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Plaintiff alleges that his position was unlawfully classified as

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exempt from state overtime and break period laws.

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seeks unpaid wages, overtime compensation, meal and rest break

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compensation, statutory penalties, and relief under California’s

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Unfair Competition law (“UCL”), Cal. Bus. & Prof. Code § 17200,

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et seq.

Plaintiff

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In its motion to dismiss, Defendant seeks to dismiss

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Plaintiff’s Seventh and Eighth causes of action along with his

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request for punitive damages.

The Seventh cause of action is in

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tort for conversion of Plaintiff’s earned but unpaid wages.

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Eighth Cause of Action is for violation of the UCL.

The

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A.

Legal Standard

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A party may move to dismiss an action for failure to state a

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claim upon which relief can be granted pursuant to Federal Rule

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of Civil Procedure 12(b)(6).

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the court must accept the allegations in the complaint as true

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and draw all reasonable inferences in favor of the plaintiff.

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Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto,

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405 U.S. 319, 322 (1972).

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conclusions,” however, are not entitled to the assumption of

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truth.

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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a motion to dismiss, a plaintiff needs to plead “enough facts to

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state a claim to relief that is plausible on its face.”

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550 U.S. at 570.

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fails to state a claim supportable by a cognizable legal theory.

In considering a motion to dismiss,

Assertions that are mere “legal

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
To survive

Twombly,

Dismissal is appropriate where the plaintiff

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Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Upon granting a motion to dismiss for failure to state a

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claim, the court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure 15(a).

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could not

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be saved by amendment.”

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Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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B.

Eminence Capital, L.L.C. v. Aspeon,

Discussion
1.

Seventh Cause of Action, Conversion
(a)

“New-right Exclusive-remedy” Rule

Defendant seeks dismissal of Plaintiff’s claim for

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conversion of Plaintiff’s allegedly unpaid wages on the theory

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that violations of the Labor Code are limited to the remedies and

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penalties contained therein pursuant to California’s “new right-

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exclusive remedy” rule.

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and argues that the “new right-exclusive remedy” rule does not

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apply to the facts of this case.

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to his conversion claim are limited to unpaid wages, and he does

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not allege conversion of statutory penalties related to waiting

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time or meal and rest breaks.

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Plaintiff disputes Defendant’s position

Plaintiff’s allegations related

The California Supreme Court has recognized as a matter of

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statutory interpretation that, “[a]s a general rule, where a

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statute creates a right that did not exist at common law and

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provides a comprehensive and detailed remedial scheme for its

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enforcement, the statutory remedy is exclusive.”

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52 Cal. 3d 65, 79 (1990).

Rojo v. Kliger,

Conversely, “where a statutory remedy
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is provided for a preexisting common law right, the newer remedy

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is generally considered to be cumulative, and the older remedy

3

may be pursued at the plaintiff’s election.”

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in analyzing whether the “new right-exclusive remedy” rule

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applies is therefore to determine whether the statute at issue

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created a right not available under the common law.

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Id.

The first step

Defendant relies on a series of federal district court cases

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that apply the “new right-exclusive remedy” rule and find that

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the California Labor Code preempts conversion claims for unpaid

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wages.

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City Corp., No. CV-01-09681 CAS (EX), 2002 WL 553219 (C.D. Cal.

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Apr. 9, 2002), involved a motion for judgment on the pleadings.

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Id. at *3.

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overtime is a right created by statute and additional causes of

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action are therefore barred by the comprehensive remedial scheme

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in the Labor Code.

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case applied Green’s reasoning to recovery of meal and rest break

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penalties under California Labor Code § 226.7.

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Cola Enters., Inc., No. EDCV06-406VAP(OPX), 2006 WL 1699328, at

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*1 (C.D. Cal. May 25, 2006).

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relied on Green and Pulido to hold that the “new right-exclusive

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remedy” rule barred a conversion claim for unpaid overtime wages

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because the Labor Code created the right to overtime and also

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provided the exclusive remedies for failure to pay wages.

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Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609

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(N.D. Cal. 2007).

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The first decision in this line of cases, Green v. Party

The Green court held that an employee’s right to

Id. at *5.

A subsequent Central District

Pulido v. Coca-

A Northern District case then

In re

Defendant also relies on two decisions from the Eastern
District that support its position.
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The first, Vasquez v. Coast

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Valley Roofing Inc., No. CV-F-07-227-OWW-DLB, 2007 WL 1660972

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(E.D. Cal. June 6, 2007), did not apply the “new right-exclusive

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remedy” rule.

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authority permitting a conversion claim for unpaid overtime,

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authority from other states, and the comprehensive remedial

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scheme in the Labor Code to determine that the Labor Code

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provided the exclusive remedy for non-payment of overtime wages.

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Id. at *10.

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Genesco, Inc., No. CIV. S–08–1666 FCD DAD, 2008 WL 7836412 (E.D.

That case relied on an absence of California

The final case cited by Defendant, Jacobs v.

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Cal. Sept. 3, 2008), relied on Green, Pulido, Wal-Mart, and

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Vasquez in holding that the “new right-exclusive remedy” rule

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applied to bar a conversion claim for unpaid wages.

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While these cases may be considered for their persuasive value,

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they are nonbinding authority.

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Id. at *3.

When a federal district court interprets state law, it is

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bound by the decisions of the highest state court.

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City of L.A., 27 F.3d 1385, 1391 (9th Cir. 1994) (citing Hewitt

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v. Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991)).

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state supreme court has not spoken on an issue presented to a

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federal court, the federal court must determine what result the

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state supreme court would reach based on state appellate court

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opinions, statutes, and treatises.”

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Court has not directly addressed the application of the “new

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right-exclusive remedy” rule to common law claims for unpaid

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minimum and overtime wages.

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what result the California Supreme Court would reach on this

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issue.

Id.

Vernon v.

“Where the

The California Supreme

This Court must therefore determine

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The California Supreme Court, in a case not involving the

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“new right-exclusive remedy” rule, determined that the Labor Code

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does not provide the exclusive remedies for unpaid wages.

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v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163 (2000).

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In Cortez, the Supreme Court held that an employee could bring a

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California Business and Professions Code § 17203 claim for the

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restitution of unpaid wages.

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that an order that a business pay to an employee wages unlawfully

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withheld is consistent with the legislative intent . . . in

Cortez

Id. at 178 (“We are satisfied . . .

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section 17203 . . . .”).

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is one of statutory interpretation by which courts determine the

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legislature’s intent.

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Court has already conclusively determined that the legislature

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did not intend to limit actions for unpaid wages to the remedies

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and penalties contained in the Labor Code.

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right-exclusive remedy” to limit a plaintiff’s causes of action

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to those contained in the Labor Code would impermissibly conflict

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with Cortez because Cortez authorized a separate cause of action

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and remedy not found in the Labor Code to recover unpaid wages.

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The “new right-exclusive remedy” rule

Based on Cortez, the California Supreme

Applying the “new

The Green decision considered Cortez and found that the case

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did not authorize a claim for conversion of unpaid wages.

2002

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WL 553219, at *4.

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shows that the court did not consider the possibility that the

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holding in Cortez shows that the remedies in the Labor Code are

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not the exclusive remedy for unpaid wages.

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acknowledged that under Cortez a § 17200 claim was permissible

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and independent of the remedies in the Labor Code, but the court

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also held that a conversion claim for unpaid wages was not

A close reading of that decision, however,

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Id.

The court

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permitted only because “Plaintiff fails to cite, and this Court

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was unable to find, a case in which a statutorily-based claim for

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nonpayment of wages has been the subject of a conversion claim.”

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Id.

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particular case coupled with a lack of authority expressly

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authorizing an action for conversion, that the plaintiff’s claims

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were limited to those authorized by the Labor Code.

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If the holding in Green is read to apply the “new right-exclusive

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remedy” rule to actions for unpaid wages, it is difficult if not

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impossible to reconcile it with the binding precedent in Cortez.

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The Green court concluded, considering the facts of that

Id. at *5.

Moreover, the portion of the holding in Green that was based

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on application of the “new right-exclusive remedy” rule is not

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persuasive.

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whether or not a right to recover overtime pay and unpaid wages

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existed at common law because the parties did not dispute that

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issue.

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rights did not exist at common law; but if such rights did exist

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at common law, the “new right-exclusive remedy” rule cannot apply

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to actions for unpaid wages because such recoveries would not

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constitute a new right.

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penalties related to meal and rest break periods, which the

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parties in that case agreed were rights created by the Labor

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Code.

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May 25, 2006).

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and Pulido, that the rights contained in the Labor Code did not

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exist at common law.

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2007).

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step in the “new right-exclusive remedy” rule is determining

The Green court never reached the question of

Id. at *4.

Green’s holding only presumed that such

Pulido similarly only addressed

No. EDCV06-406VAP(OPX), 2006 WL 1699328, at *1 (C.D. Cal.
Wal-Mart assumed without analysis, citing Green

505 F. Supp. 2d 609, 618–19 (N.D. Cal.

As explained in Rojo, however, the first and necessary

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whether or not the right existed at common law.

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79 (1990).

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52 Cal. 3d 65,

California established the Industrial Welfare Commission

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(“IWC”), the entity charged with determining and enforcing a

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minimum wage, by statute in 1913.

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35, 50 (2010).

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established in 1916.2

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enacted a statute enabling any employee to recover wages due

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under the minimum wage and overtime laws.

Martinez v. Combs, 49 Cal.4th

The first minimum wage of $0.16 per hour was
Also in 1913, the California legislature

Martinez, 49 Cal.4th

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at 50 (citing Cal. Lab. Code § 1194).

Prior to 1913, actions

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existed to recover unpaid wages and overtime wages at common law.

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Under the common law, an employee could recover unpaid wages

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through an action in contract or, if the contract was legally

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void, in quantum meruit for the value of services rendered.

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Brown v. Crown Gold Milling Co., 150 Cal. 376, 383-84 (1907)

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(discussing actions for breach of an employment contract and

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actions in quantum meruit for recovery of the value of services

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rendered in employment).

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outside of the normal scope of the employment agreement, the

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employee could recover in quantum meruit the value of that work

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in addition to his regular salary.

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1977, a California appellate court approved a common law cause of

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action for the recovery of wages for mandatory trainings attended

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outside of normal working hours, or in other words, a common law

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cause of action to recover overtime pay.

Where an employee performed work

Id. at 389.

As recently as

Wilson v. Cnty. of

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27
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2

History of California Minimum Wage,
http://www.dir.ca.gov/iwc/MinimumWageHistory.htm (last visited
Apr. 22, 2013).
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Santa Clara, 68 Cal. App. 3d 78, 86 (1977) (holding that the

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federal Fair Labor Standards Act regulating minimum and overtime

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wages was, in part, a codification of wage rights existing at

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common law).

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One California appellate court has addressed the application

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of the “new right-exclusive remedy” rule to claims for unpaid

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wages.

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the availability of punitive damages that were predicated solely

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on violations of the Labor Code’s wage and hour provisions.

In Brewer v. Premier Golf Properties, the court addressed

168

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Cal. App. 4th 1243 (2008).

In resolving that question, the court

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held that the Labor Code sections regulating pay stubs, the

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minimum wage, and meal and rest breaks created new rights and

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that the remedies also provided for in the Labor Code constituted

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the exclusive remedies for violations of those rights under the

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“new right-exclusive remedy” rule.

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like in Green, the parties agreed that the Labor Code created new

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rights, so the court did not discuss the history of common law

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actions to recover unpaid wages.

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comprehensive nature of the remedies in the Labor Code.

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1252.

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a purely statutory creation before a statutory remedy is

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considered exclusive.

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statutory remedy is generally cumulative, even if the remedy is

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comprehensive.

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(holding that despite the comprehensive statutory scheme in the

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Fair Employment and Housing Act, the statute did not preempt

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common law tort actions for discrimination).

Id. at 1252-54.

In Brewer,

Brewer only analyzed the
Id. at

Brewer is therefore not persuasive because a right must be

If a right existed at common law, a

Rojo v. Kliger, 52 Cal. 3d 65, 79-80 (1990)

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The foregoing authority demonstrates that employees were

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entitled to recover unpaid wages and overtime compensation at

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common law.

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controlling because it does not acknowledge the availability of

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actions to recover wages at common law, skipping the first step

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of the “new right-exclusive remedy” analysis.

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establish minimum wages for regular compensation and overtime

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compensation, but under the common law, an employee was entitled

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to recover a reasonable amount for labor performed in quantum

The case law cited by Defendant is not persuasive or

The Labor Code did

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meruit or in an action for breach of contract.

Brown, 150 Cal.

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at 383-84.

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simply defined what that reasonable amount was, but they did not

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create the underlying right of an employee to be paid at a fair

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rate for his labor or the right of that employee to sue for

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reasonable compensation if he was not.

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cites no language in the Labor Code itself that preempts common

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law causes of action.3

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that if the question were presented to the California Supreme

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Court, it would find that any cause of action in the Labor Code

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to recover unpaid wages is cumulative with those that exist at

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common law.

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statutory remedy for a right existing at common law is cumulative

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with existing remedies).

The Labor Code’s minimum wage and overtime provisions

Additionally, Defendant

It is therefore the opinion of this Court

See Rojo, 52 Cal. 4th at 79 (explaining that a

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Plaintiff, on the other hand, argues that California Labor Code
§§ 558 and 1197.1(h) shows the legislature’s express intent to
allow causes of action not contained within the Labor Code.
Based on the Court’s finding that the Labor Code is not the
exclusive remedy for unpaid wage claims, the Court does not reach
Plaintiff’s argument regarding these sections.
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(b)

2

Conversion Claim for Unpaid Wages
i.

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4

Availability of Action for Conversion of
Unpaid Wages

After finding that the “new right-exclusive remedy” rule

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does not preempt common law causes of action to recover unpaid

6

wages, the Court must address whether or not a conversion claim

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for unpaid wages is viable as a matter of California law.

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Conversion is “the wrongful exercise of dominion over the

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property of another.”

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4th 539, 543 (1996).

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plaintiff must allege that (1) he had ownership or rights to

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possess the property at issue at the time of the conversion; (2)

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the defendant converted the property by wrongful act; and (3) the

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plaintiff suffered damages as a result.

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cannot be the subject of a cause of action for conversion unless

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there is a specific, identifiable sum involved[.]”

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Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP,

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150 Cal. App. 4th 384, 395 (2007).

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capable of identification, the law does not require a plaintiff

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to identify the physical coins or notes allegedly converted.

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Haigler v. Donnelly, 18 Cal. 2d 674, 681 (1941).

22

courts generally permit actions for conversion where a readily

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ascertainable sum has been misappropriated, commingled, or

24

misdirected.

25

Oakdale Vill. Grp. v. Fong, 43 Cal. App.
To state a claim for conversion, a

Id. at 543-44.

“Money

PCO, Inc. v.

While a specific sum must be

California

PCO, 150 Cal. App. 4th at 396.

Neither party cites a case that expressly approves a

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conversion claim to recover unpaid wages.

27

found by the Court involved an action by the California

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Department of Labor Standards Enforcement (“DLSE”) to recover
12

One California case

1

unpaid wages pursuant to a settlement agreement.

2

Relations v. UI Video Stores, Inc. (“Blockbuster”), 55 Cal. App.

3

4th 1084.

4

recover wages deducted to pay for uniforms in violation of

5

California law.

6

Blockbuster agreed to send checks in the amount of $38.51 to each

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of 1,914 employees.

8

returned as undeliverable, and DLSE demanded the returned checks

9

in order to deposit them in California’s unpaid wage fund.

Dep’t of Indus.

The DLSE sued Blockbuster on behalf of employees to

Id. at 459.

Id.

The parties settled the suit and

A significant portion of the checks was

Id.

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Blockbuster eventually turned over the checks, but ordered its

11

bank not to honor them.

12

breach of the settlement agreement and conversion of the wages.

13

Id.

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first that the checks constituted wages, which DLSE was

15

authorized by statute to collect on behalf of employees, and

16

second that DLSE could maintain its conversion cause of action as

17

the statutory trustee standing in the shoes of the absent

18

employees.

19

Id.

DLSE sued Blockbuster alleging

The court approved DLSE’s action for conversion finding

Id. at 460-61, 464.

Vasquez, a case cited by Defendants and also discussed in

20

the preceding section, found that the holding in Blockbuster did

21

not approve a conversion claim for unpaid wages.

22

court reasoned, “The conversion occurred because Blockbuster

23

failed to turn over to the DLSE the undeliverable checks as

24

required by the Settlement Agreement, instead using those funds

25

for Blockbuster’s own use.”

26

Inc., No. CV-F-07-227-OWW-DLB, 2007 WL 1660972, at *5 (E.D. Cal.

27

June 6, 2007).

28

to enforce a settlement agreement in Blockbuster, not recover

The Vasquez

Vasquez v. Coast Valley Roofing

The Vasquez court found that the DLSE was acting

13

1

unpaid wages.

2

clearly determined that the checks constituted unpaid wages.

3

Cal. App. 4th at 1091-92.

4

holding was explicitly based on DLSE’s status as the trustee of

5

unpaid wages for absent employees pursuant to Labor Code § 96.7.

6

Id. at 1092-93.

7

conversion of unpaid wages was not based on violation of the

8

settlement agreement; it was based on the checks’ status as

9

unpaid wages and DLSE’s authority to act on behalf of employees

10

Contrary to Vasquez’s description, Blockbuster
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Further, the Blockbuster court’s

The Blockbuster court’s approval of a claim for

to recover them.

11

In Cortez, also discussed in the preceding section, the

12

California Supreme Court analyzed the legal status of unpaid

13

wages in the context of a claim brought under California’s Unfair

14

Competition Law (“UCL”).

15

that wages, once earned, become the property of the employee.

16

Id. at 168.

17

equitable conversion under which the law considers “that which

18

ought to have been done as done.”

19

Code § 3529 and Parr-Richmond Indus. Corp. v. Boyd, 43 Cal. 2d

20

157, 165 (1954)).

21

restitution of lost money or property, but the court found that

22

employees possess equitable title in their earned but unpaid

23

wages because the employer had a legal obligation to pay them.

24

Id.

25

restitution for wrongfully acquired money or property under the

26

UCL, even though the UCL does not authorize compensatory damages

27

and the employees never had physical possession of their lost

28

property, i.e., their unpaid wages.

23 Cal. 4th 163 (2000).

The court held

The Cortez decision relied on the doctrine of

Id. at 178 (citing Cal. Civ.

The sole remedy available under § 17200 is

Cortez therefore held that unpaid wages could be awarded as

14

Id.

This aspect of the

1

Cortez holding is instructive first because it shows that

2

employees are deemed to possess their wages when they earn them,

3

and second that recovery of unpaid wages is not limited to

4

remedies sounding in contract or the Labor Code.

5

Labs., Inc. v. Rhone-Poulenc Rorer, Inc., 178 F. Supp. 2d 1099,

6

1125 (C.D. Cal. 2001) (explaining that a breach of contract alone

7

does not form the predicate for a § 17200 claim).

8
9

See Watson

Plaintiff also cites Lu v. Hawaiian Gardens Casino, Inc. to
support his position that conversion claims are available to

10

recover unpaid wages. 50 Cal. 4th 592 (2010).

In Lu, the

11

California Supreme Court addressed the narrow issue of the

12

availability of a private right of action to recover gratuities

13

improperly withheld by an employer under California Labor Code

14

§ 351.

15

gratuities and establishes that each gratuity is “the sole

16

property of the employee or employees to whom it was paid, given,

17

or left for.”

18

no private right of action existed under the statute, but it also

19

made it clear that employees could recover gratuities through

20

other means, such as an action for conversion.

21

at 603-04.

22

that employees hold legal title to their earned but unpaid wages

23

in a manner that is indistinguishable from the legal title to

24

their gratuities created by Labor Code § 351.

25

and Cortez therefore support Plaintiff’s position that his

26

conversion claim for unpaid wages is legally viable.

27

also be noted that the Green, Pulido, Wal-Mart, and Vasquez cases

Section 351 prohibits an employer from withholding

Cal. Lab. Code § 351.

The court determined that

Lu, 50 Cal. 4th

Based on the holding in Cortez, it logically follows

28
15

The holdings in Lu

It should

1

were all decided prior to Lu, and were therefore unable to

2

consider the California Supreme Court’s reasoning in that case.

3

Based on the foregoing, there is clear authority under

4

California law that employees have a vested property interest in

5

the wages that they earn, failure to pay them is a legal wrong

6

that interferes with the employee’s title in the wages, and an

7

action for conversion can therefore be brought to recover unpaid

8

wages.

9

find that a cause of action for conversion of unpaid wages is

The Blockbuster decision alone is sufficient authority to

10

viable.

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which establish the exact legal nature of earned but unpaid wages

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under California law, this Court finds that if the issue were

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presented to the California Supreme Court, it would approve a

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conversion action for unpaid wages just as it indicated such an

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action is available for converted gratuities.

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Additionally relying on the holdings in Lu and Cortez,

ii.

Specific Sum Converted

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Defendant argues that even if the Labor Code does not

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preempt Plaintiff’s conversion claim, the claim is inadequately

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pled in this instance because Plaintiff does not identify a

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specific sum converted by Defendant.

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sum converted is easily determined based on hourly rates and the

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number of hours worked.

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California law, the employer is responsible for keeping wage

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records, making any uncertainty attributable to Defendant.

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Plaintiff responds that the

Plaintiff also argues that under

The problem with Plaintiff’s position is that there is no

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indication in the complaint that the wages sought constitute an

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identifiable sum or how such a sum can be readily ascertained.

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An allegation to that effect is a necessary element of a properly
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1

pled conversion claim.

2

Jacobs, Glaser, Weil & Shapiro, LLP, 150 Cal. App. 4th 384, 395-

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96 (2007).

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pled.

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amendment, Plaintiff is granted leave to amend the complaint.

Plaintiff’s conversion claim is therefore improperly

Since Plaintiff may be able to cure this defect through

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2.

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PCO, Inc. v. Christensen, Miller, Fink,

Eighth Cause of Action, Cal. Bus. & Prof. Code
§ 17200

Defendant seeks dismissal of Plaintiff’s eighth cause of
action brought to recover unpaid wages under California Business

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and Professions Code § 17200.

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is improper because Plaintiff did not allege a quantifiable sum.

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Plaintiff responds that under Cortez the claim is permissible and

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adequately pled.

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Defendant contends that the claim

Defendant cites Korea Supply Co. v. Lockheed Martin Corp.,

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29 Cal. 4th 1134, 1150 (2003), and Cortez to support its

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argument.

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be brought to recover unpaid wages.

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distinguishes its holding from Cortez, stating, “Unlike Cortez,

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then, the monetary relief requested by [Korea Supply Co.] does

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not represent a quantifiable sum owed by defendants to

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plaintiff.”

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authorizes a § 17200 claim for unpaid wages, a point that

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Defendant seems to concede by not rebutting Plaintiff’s arguments

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on this specific claim in its reply.

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dismiss this claim is accordingly denied.

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28

Both of those cases indicate that a § 17200 claim can

3.

Id. (emphasis added).

Korea Supply specifically

As discussed above, Cortez

Defendant’s motion to

Punitive Damages

Defendant argues that Plaintiff’s punitive damages claim
should be dismissed because it is predicated solely on
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Plaintiff’s conversion claim.

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point in his opposition.

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punitive damages is also dismissed with leave to amend.

Plaintiff does not contest this

Accordingly, Plaintiff’s claim for

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III. ORDER

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For the foregoing reasons, Defendant’s Motion to Dismiss is

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granted with respect to Plaintiff’s Seventh claim for conversion

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and his punitive damages claim.

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with respect to plaintiff’s Eighth claim for relief.

Defendant’s motion is denied
Plaintiff

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is given leave to amend his complaint within 20 days of this

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Order.

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either 20 days of any amended complaint or 40 days of this Order,

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whichever occurs sooner.

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Defendant is ordered to file a responsive pleading within

IT IS SO ORDERED.
Dated: July 1, 2013

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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