Gallardo et al v. AT&T Mobility LLC

Filing 30

ORDER by Judge Claudia Wilken DENYING DEFENDANTS 22 MOTION TO DISMISS OR STRIKE. (ndr, COURT STAFF) (Filed on 3/29/2013)

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 9 GEORGE GALLARDO, CARLOS BARRAGAN, KYLE BINNS, CARLOS CRUZ, JENNIFER DE WITT, HECTOR RODRIQUEZ, DENISE ROMAN, individually and on behalf of all other similarly situated, Plaintiffs, United States District Court For the Northern District of California 10 11 12 13 No. C 11-4749 CW ORDER DENYING DEFENDANT’S MOTION TO DISMISS OR STRIKE (Docket No. 22) v. AT&T MOBILITY, LLC, Defendant. 14 15 ________________________________/ 16 17 Defendant AT&T Mobility, LLC has filed a motion to dismiss 18 this action and to strike allegations that the complaint is 19 brought on behalf of other unnamed individuals because Plaintiffs 20 have not satisfied the requirements of Federal Rule of Civil 21 Procedure 23. 22 was decided on the papers. 23 papers, the Court DENIES Defendant’s motion to dismiss or strike. 24 25 Plaintiffs have filed an opposition. The motion Having considered all of the parties’ BACKGROUND The facts set forth herein are those alleged in Plaintiffs’ 26 complaint and in the documents of which Defendant has requested 27 judicial notice, without objection from Plaintiffs. 28 1 Plaintiffs and the workers they seek to represent are current 2 and former Retail Sales Consultants (RSCs) for Defendant who work 3 or have worked in one or more of the AT&T Mobility retail stores 4 throughout California. 5 of Defendant’s decision to remove seats from the sales floors of 6 its retail stores in California. 7 seats as part of its efforts to remodel all of its stores to 8 create uniformity following the merger of Cingular Wireless and 9 AT&T Wireless. Complaint ¶¶ 1-8. Id. at ¶ 16. This dispute arises out Defendant began removing the Plaintiffs allege that by, 2007, United States District Court For the Northern District of California 10 seating had been removed from the sales floor of all of 11 Defendant’s stores. Id. at ¶ 17. 12 Plaintiffs are members of the bargaining unit of the 13 Communications Workers of America, Local 9505, District 9 (the 14 Union). 15 Defendant under the Collective Bargaining Agreement (CBA) that 16 governed the terms and conditions of Plaintiffs’ employment with 17 Defendant. 18 grievance form challenged Defendant’s decision to remove seats 19 from the sales floors of its stores and not to provide stools for 20 CSRs to sit or lean on while providing service from behind a 21 counter. 22 shall be provided with suitable seats when the nature of the work 23 reasonably permits the use of seats.” 24 the grievance to binding arbitration pursuant to the CBA’s dispute 25 resolution provision. 26 On January 30, 2007, the Union filed a grievance against Def. Request for Judicial Notice, Ex. C. The The Union sought an order that “all working employees Id. The parties submitted On March 31, 2010, the arbitrator entered an opinion and 27 award. Defendant’s Request for Judicial Notice, Ex. D. 28 parties agreed that the arbitrator had the authority to determine 2 The 1 the scope of the issues to be decided in the arbitration. 2 1. 3 before him: 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 Id. at The arbitrator determined that the following four issues were (1) Did the grievance language and its subsequent handling provide sufficient notice to the Company of the “failure to bargain” issue so as to make the merits of that issue arbitrable? If so, (2) Did the company fail to bargain with the Union over its decision to remove the chairs from the old Cingular stores and not replace them with stools, and, if so, what is the appropriate remedy? (3) Does Article 16, Section 3 preclude arbitration of the grievance claiming that the failure to provide adequate seating for customer service representatives violates the CBA and/or California law? If not, (4) Is the Company violating the collective bargaining agreement and/or applicable California law by not providing seating to its customer service representatives, and, if so, what is the appropriate remedy? 15 Id. at 2. 16 language provided sufficient notice to Defendant of the “failure 17 to bargain” issue; (2) Defendant failed to bargain in violation of 18 the CBA; (3) contrary to the Defendant’s argument otherwise, 19 whether the removal of seating violated the CBA and/or California 20 law was arbitrable; and (4) the removal of seating did not violate 21 the terms of the CBA or Industrial Welfare Commission (IWC) Wage 22 Order 4-2001, Section 14 (Section 14). 23 arbitrator declined to require Defendant to provide seating as a 24 remedy for its failure to bargain, and instead directed the 25 parties to discuss an appropriate form and measure of 26 compensation. 27 28 The arbitrator concluded that (1) the grievance Id. at 8-11. The Id. at 13. On August 19, 2011, Plaintiffs filed a complaint in Alameda County Superior Court, alleging that Defendant violated California 3 1 Labor Code section 1198 by failing to provide seating, in 2 violation of Wage Order 7-2001, Section 14. 3 penalties on behalf of themselves and other former and current 4 RSCs pursuant to the California Labor Code Private Attorneys 5 General Act of 2004 (PAGA), California Labor Code sections 2698 et 6 seq., and prospective injunctive relief under California’s Unfair 7 Competition Law (UCL), California Business and Professions Code 8 sections 17200 et seq. 9 Plaintiffs seek Defendant removed the complaint to this Court on September United States District Court For the Northern District of California 10 23, 2011, and the Court granted a series of stipulated stays while 11 the parties attempted to settle this action. 12 to dismiss or strike, arguing that (1) Plaintiffs’ claims are 13 barred under the doctrine of res judicata based on the 14 arbitrator’s decision; (2) Plaintiffs’ claims fail as a matter of 15 law because they cannot establish a violation of Section 14; (3) 16 Plaintiffs’ representative PAGA claim fails because it does not 17 comply with Federal Rule of Civil Procedure 23; (4) any award of 18 penalties pursuant to PAGA would be unjust, arbitrary, oppressive, 19 and confiscatory as a matter of law; (5) Plaintiffs’ UCL claim 20 fails as a matter of law; (6) Plaintiffs’ UCL claim is time- 21 barred; and (7) the representative allegations of the UCL claim 22 must be dismissed or stricken because they fail to comply with 23 Rule 23. 24 25 26 Defendant now moves LEGAL STANDARD I. Motion to Dismiss for Failure to State a Claim A complaint must contain a “short and plain statement of the 27 claim showing that the pleader is entitled to relief.” 28 Civ. P. 8(a). Fed. R. On a motion under Rule 12(b)(6) for failure to 4 1 state a claim, dismissal is appropriate only when the complaint 2 does not give the defendant fair notice of a legally cognizable 3 claim and the grounds on which it rests. 4 Twombly, 550 U.S. 544, 555 (2007). 5 complaint is sufficient to state a claim, the court will take all 6 material allegations as true and construe them in the light most 7 favorable to the plaintiff. 8 896, 898 (9th Cir. 1986). 9 to legal conclusions; “threadbare recitals of the elements of a Bell Atl. Corp. v. In considering whether the NL Indus., Inc. v. Kaplan, 792 F.2d However, this principle is inapplicable United States District Court For the Northern District of California 10 cause of action, supported by mere conclusory statements,” are not 11 taken as true. 12 (citing Twombly, 550 U.S. at 555). 13 II. 14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) Motion to Strike Pursuant to Federal Rule of Civil Procedure 12(f), the court 15 may strike from a pleading “any redundant, immaterial, impertinent 16 or scandalous matter.” 17 avoid spending time and money litigating spurious issues. 18 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), 19 rev'd on other grounds, 510 U.S. 517 (1994). 20 if it has no essential or important relationship to the claim for 21 relief plead. 22 and is not necessary to the issues in question in the case. 23 Motions to strike are disfavored because they are often used as 24 delaying tactics and because of the limited importance of 25 pleadings in federal practice. 26 1450, 1478 (C.D. Cal. 1996). 27 is clear that the matter to be stricken could have no possible Id. The purpose of a Rule 12(f) motion is to Matter is immaterial Matter is impertinent if it does not pertain Id. Bureerong v. Uvawas, 922 F. Supp. They should not be granted unless it 28 5 1 bearing on the subject matter of the litigation. 2 Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991). 3 4 5 Colaprico v. Sun DISCUSSION I. Res Judicata Defendant first argues that the arbitrator’s decision bars 6 Plaintiffs’ claims under the doctrine of res judicata. The 7 doctrine of res judicata, or claim preclusion, provides that a 8 final judgment on the merits bars future claims by the same 9 parties based on the same causes of action. Tahoe-Sierra Pres. United States District Court For the Northern District of California 10 Council v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th 11 Cir. 2003). 12 were raised or could have been raised in a prior action. 13 Radio Servs. Co., Inc. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 14 1997). 15 the judgment were actually pursued in the prior action; rather, 16 the relevant inquiry is whether they could have been brought. 17 Tahoe-Sierra, 322 F.3d at 1078. 18 “relieve parties of the cost and vexation of multiple law suits, 19 conserve judicial resources, and, by preventing inconsistent 20 decisions, encourage reliance on adjudication.” 21 Health Care Fin. Agency, 769 F.2d 590, 594 (9th Cir. 1985) 22 (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). 23 It prohibits the re-litigation of any claims that Western It is immaterial whether the claims asserted subsequent to The purpose of the doctrine is to Marin v. HEW, Three elements must be present in order for res judicata to 24 apply: (1) an identity of claims; (2) a final judgment on the 25 merits; and (3) the same parties or their privies. 26 U.S. at 94. 27 Clark v. Bear Stearns & Co., 966 F.2d 1318, 1321 (9th Cir. 1992). 28 However, “res judicata bars only those grounds for recovery which Allen, 449 Final arbitration awards can have preclusive effect. 6 1 could have been asserted in the prior litigation.” 2 Accordingly, “a claim is not barred by res judicata if the forum 3 in which the first action was brought lacked subject matter 4 jurisdiction to adjudicate that claim.” 5 Id. Id. Here, the arbitrator found that Defendant’s decision not to 6 provide seating for CSRs was not a violation of Section 14. 7 Request for Judicial Notice, Ex. D at 11. 8 that the arbitrator lacked the authority to make such a 9 determination.1 Def. Plaintiffs now argue Plaintiffs cite various provisions of the CBA, United States District Court For the Northern District of California 10 which limit arbitration to “matters processed through all steps of 11 the formal grievance procedure” and provide that “grievances shall 12 be confined to differences arising out of the interpretation and 13 application of the terms or provisions of [the CBA].” 14 Request for Judicial Notice, Ex. C at 8, 13. 15 provides, 16 17 18 19 20 21 22 23 24 25 26 27 28 Def. The CBA further The arbitrator shall be confined to the subjects submitted for decision, and may in no event, as a part of any such decision, impose upon either party any obligation to arbitrate on any subjects which have not been herein agreed upon as subjects for arbitration. The arbitrator . . . shall not have the power to add to, 1 Both Plaintiffs and Defendant argue that the other party should be estopped from taking their respective positions regarding the validity of the arbitrator’s finding. As Plaintiffs point out, Defendant argued in its post-hearing arbitration brief that the arbitrator did not have the authority to determine state law claims. And, as Defendant points out, Plaintiffs framed the issue to be decided by the arbitrator as whether Defendant violated the CBA and the Wage Order when it removed the chairs from its stores. Now, before this Court, the parties have switched their positions, with Defendant arguing that the arbitrator appropriately found that the removal of the chairs was not a violation of the Wage Order and Plaintiffs arguing that the arbitrator lacked the authority to make such a finding. The Court does not find either party’s estoppel argument persuasive. 7 subtract from, or vary the terms of the Agreement . . . but shall be limited in power and jurisdiction to determine whether there has been a violation of this Agreement. 1 2 3 4 5 6 7 Id. at 13. arbitrator was limited to finding that Defendant violated the CBA by removing the seating without bargaining with the Union and that the removal itself was not a violation of the CBA. Defendant responds that the Wage Order is “incorporated by 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 Based on these provisions, Plaintiffs argue that the reference into the CBA provision that permits AT&T to take ‘whatever actions are deemed reasonably necessary to fully comply with laws, rules and regulations regarding safety.’” at 2. Reply Brief However, the arbitrator found, “Whether employees can sit while doing some of their job tasks is a health issue, and not one of safety.” Def. Request for Judicial Notice, Ex. D at 11. Moreover, the provision Defendant cites is a non-arbitration provision, which reads in full: None of the terms of this Agreement shall be applied or interpreted to restrict the Company from taking whatever actions are deemed reasonably necessary to fully comply with laws, rules and regulations regarding safety, and grievance and arbitration provisions of this Agreement shall not apply to any such actions. Discipline for failure to observe safety rules shall be grievable and arbitrable under the Terms of this Agreement. Other matters relating to safety may be raised under the Grievance Procedure but not arbitrated. 22 23 24 Id. at 24 (emphasis added). The Court finds that the arbitrator lacked the authority to 25 make a binding decision regarding Defendant’s compliance with the 26 Wage Order. 27 res judicata. Accordingly, Plaintiffs’ claims are not precluded by 28 8 1 II. Failure to state a claim for a violation of Section 14(A) 2 Defendant argues that Plaintiffs have failed to state a claim 3 for violation of Wage Order, Section 14(A), because the “nature of 4 their work” requires them to stand as a matter of law. 5 Wage Order, Section 14 provides: 6 (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. 7 8 9 United States District Court For the Northern District of California 10 11 12 13 (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. Cal. Code Regs. Tit. 8 § 11070(14). Defendant first argues that Plaintiffs cannot state a claim 14 because they do not allege that the entire range of their assigned 15 duties could be performed while seated. 16 v. San Francisco Hilton, Inc., Case No. 04-431310 (San Francisco 17 Co. Super. Ct. June 29, 2005), which found, “If standing is 18 required for all or part of a job, Section A does not apply and 19 the employer must comply with Section B.” 20 court reasoned that Sections A and B of the Wage Order must be 21 read collectively. 22 A applies to any job which “reasonably permits the use of seats” 23 and Section B applies to any job “where all or part of the job 24 requires standing.” 25 court’s reasoning, taken to its extreme, leads to absurd results. 26 For example, an employer would not be required to provide a chair 27 for an administrative assistant, whose primary job involves 28 computer work and answering telephones, if he or she was also Defendant cites Hamilton Id. at 5. The Hamilton Accordingly, the Hamilton court found Section Id. As Plaintiffs point out, the Hamilton 9 1 responsible for any tasks that require standing, such as 2 delivering mail, making copies and running brief errands. 3 Court is not required to defer to the state court’s interpretation 4 of the Wage Order, and is not persuaded by its analysis. 5 The Defendant further cites Kilby v. CVS Pharmacy, Inc., 2012 6 U.S. Dist. LEXIS 76507 (S.D. Cal.), which distinguished between 7 “duties” and the overall “nature of the work” related to the 8 plaintiff’s job. 9 summary judgment, finding that where “the majority of an The court granted the employer’s motion for United States District Court For the Northern District of California 10 employee’s assigned duties must physically be performed while 11 standing, and the employer expects and trains the employee to 12 stand while doing so, the ‘nature of the work’ requires standing.” 13 Id. at *19. 14 However, Plaintiffs allege that RSCs stand behind counters 15 and use computers when they provide customer service. 16 at ¶ 17. 17 behind the counters for stools or other seating;” “[t]here is 18 nothing in the layout and/or design of AT&T Mobility stores that 19 would interfere with the addition of seating for the retail 20 employees;” and “[t]here is nothing in the nature of the work or 21 the activities and/or tasks performed by Retail Sales Consultants 22 in the AT&T Mobility retail stores that would be hindered or in 23 any way negatively impacted by the ability to sit while working 24 behind the counter.” 25 Complaint Plaintiffs further allege that “there is ample space Complaint at ¶¶ 17-19. Moreover, Plaintiffs have alleged that the nature of the work 26 performed by RSCs permits sitting and identified at least one 27 primary task carried out by RSCs that can be performed while 28 seated. This is sufficient to state a claim for a violation of 10 1 the Wage Order. 2 the majority of RSCs’ duties require them to stand, but that 3 evidence is not presently before the Court and could not be 4 considered on a motion to dismiss. 5 The evidence may show, as it did in Kilby, that Defendant also argues that, even if the work RSCs performs 6 behind the counter can physically be performed seated, it has 7 exercised its business judgment to determine that such work 8 requires standing. 9 stands for the proposition that any business judgment regarding However, neither of the cases Defendant cites United States District Court For the Northern District of California 10 standing is sufficient. 11 employer’s reasonable job requirements,” Case No. 04-431310 at 5, 12 while Kilby only requires that the court “consider an employer’s 13 ‘business judgment’ when attempting to discern the nature of an 14 employee’s work.” 15 Plaintiffs’ reference to Defendant’s “belief that the nature of 16 the work performed by the employees prevents the use of seating” 17 does not undermine a claim that such belief is not reasonable. 18 The Court finds that Plaintiffs’ allegations are sufficient to 19 state a claim for a violation of Wage Order Section 14(A). 20 III. Failure to state a claim for a violation of Section 14(B) 21 Hamilton only requires deference to “an 2012 U.S. Dist. LEXIS 76507 at *15-16. Defendant also argues that Plaintiffs have failed to state a 22 claim under Section 14(B) of the Wage Order. 23 allege that Defendant has “failed and refused to provide Retail 24 Sales Consultants with any seating despite the fact that the 25 nature of the work performed by the employees reasonably permits 26 the use of such seats whether or not the employee is engaged in 27 the active duties of his or her employement.” 28 11 However, Plaintiffs Complaint ¶ 22. 1 The Court finds that these allegations are sufficient to state a 2 claim for a violation of Wage Order Section 14(B). 3 IV. PAGA claims 4 Defendant next argues that Plaintiffs’ PAGA claims must be 5 dismissed because (1) Plaintiff has not made allegations of the 6 class certification elements of Federal Rule of Civil Procedure 7 23; and (2) any award of penalties would be unjust, arbitrary, 8 oppressive, and confiscatory as a matter of law. 9 United States District Court For the Northern District of California 10 A. Rule 23 The parties agree that an individual suing in a 11 representative capacity under PAGA is not required to satisfy 12 class action requirements if the case is brought in state court. 13 See Arias v. Superior Court, 46 Cal. 4th 969, 975 (2009). 14 However, the Ninth Circuit has not reached the question of whether 15 or not representative PAGA claims brought in federal court must be 16 certified under Rule 23, and the district courts are split on the 17 issue. 18 rather than one of substantive law and that, therefore, PAGA is 19 not determinative of the procedures required in federal court.” 20 Willner v. Manpower Inc., 2012 U.S. Dist. LEXIS 62227, *21 (N.D. 21 Cal.) (collecting cases). Some courts have found that “PAGA is a procedural statute, 22 However, other courts, including every court to reach the 23 issue in this district, have found that representative PAGA claims 24 need not be certified under Rule 23 to proceed. 25 U.S. Dist. LEXIS 62227 at *26; Tholmer v. Rite Aid Corp., 2012 26 U.S. Dist. LEXIS 36747, *5 (N.D. Cal.); Moua v. Int’l Bus. Mach. 27 Corp., 2012 U.S. Dist. LEXIS 11081, *10 (N.D. Cal.); Sample v. Big 28 Lots Stores, Inc., 2010 U.S. Dist. LEXIS 131130, *8 (N.D. Cal.); 12 See Willner, 2012 1 Ochoa-Hernandez v. CJADER Foods, Inc., 2010 U.S. Dist. LEXIS 2 32774, *13 (N.D. Cal.).2 3 also reached this conclusion. 4 LEXIS 47855 at *20 (“Plaintiff may pursue her PAGA claim as a non- 5 class representative action); Mendez v. Tween Brands, Inc., 2010 6 U.S. Dist. LEXIS 66454, *11 (E.D. Cal.) (“PAGA claims, by 7 definition, are not class actions”). 8 9 Several courts in other districts have See, e.g., Kilby, 2012 U.S. Dist. These courts, which have found PAGA claims need not comply with Rule 23, have focused on the distinction between the purpose United States District Court For the Northern District of California 10 of a PAGA representative action and a class action. For example, 11 in Sample, the court noted that “a PAGA claim serves to vindicate 12 the public through the imposition of civil penalties as opposed to 13 conferring a private benefit upon the plaintiff and the 14 represented employees.” 15 also Tholmer, 2012 U.S. Dist. LEXIS 36747 at *5 (“A PAGA 16 representative claim that is not brought on behalf of a class and 17 seeks only civil penalties is a law enforcement action that is 18 distinct from a class action.”); Cardenas v. McLane Foodservice, 19 Inc., 2011 U.S. Dist. LEXIS 13126, *8-9 (C.D. Cal.) (“Since PAGA 20 plaintiffs neither represent the rights of a class nor recover 21 damages, a PAGA claim neither purports to be a class action nor 22 intends to accomplish the goals of a class action.”). 2010 U.S. Dist. LEXIS 131130 at *8; see This 23 2 24 25 26 27 28 One court in this district reached the opposite conclusion in Thompson v. APM Terminals Pac. Ltd., 2010 U.S. Dist. LEXIS (N.D. Cal.). However, in a later case, that same court acknowledged its earlier finding, cited other courts that determined that representative PAGA claims need not be brought as class actions, found that reasoning persuasive and denied the defendant’s motion to strike. Willner, 2012 U.S. Dist. LEXIS 62227 at *26. 13 1 understanding of PAGA is shared by the California Supreme Court, 2 which has held that, when pursuing a PAGA claim, “the employee 3 plaintiff represents the same legal right and interest as state 4 labor enforcement agencies--namely, recovery of civil penalties 5 that otherwise would have been assessed and collected by the Labor 6 and Workforce Development Agency.” Arias, 46 Cal. 4th at 986. The Court finds the reasoning of these cases to be 7 8 persuasive. Accordingly, the Court finds that Plaintiffs need not 9 bring their PAGA claims as a class action. Defendant’s motion to United States District Court For the Northern District of California 10 dismiss or strike Plaintiffs’ PAGA claims on this ground is 11 denied. 12 B. 13 Citing PAGA’s provision that the Court may award a lesser Penalties 14 amount than the maximum civil penalty if, “based on the facts and 15 circumstances of the particular case, to do otherwise would result 16 in an award that is unjust arbitrary and oppressive, or 17 confiscatory,” Defendant argues that the Court should find that 18 “no penalties could or would be imposed” and strike or dismiss 19 Plaintiff’s PAGA claim. 20 citing Cal. Lab. Code § 2699(e)(2). 21 no authority to support such a finding at the pleading stage. 22 Court declines to dismiss or strike on this ground. 23 V. Defendant’s Motion to Strike at 20-21, However, Defendant provides The UCL Claim 24 A. Failure to state a claim 25 Defendant argues that, because Plaintiffs’ first cause of 26 action fails as a matter of law, their UCL claim must also fail as 27 a matter of law because it is derivative of the first cause of 28 action. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 14 1 4th 1134, 1143 (2003) (The UCL “‘borrows’ violations from other 2 laws by making them independently actionable as unfair competitive 3 practices.”). 4 cause of action does not fail as a matter of law. 5 the Court will not dismiss Plaintiffs’ UCL claim on this basis. However, the Court finds that Plaintiffs’ first Accordingly, 6 B. Time-Bar 7 Defendant next argues that Plaintiffs’ UCL claim is timebarred. 9 California Supreme Court has decided that UCL claims are governed 10 United States District Court For the Northern District of California 8 by common law accrual rules and the continuous accrual rule may be 11 applied. 12 1185, 1196 (2013). 13 which it has supplemental jurisdiction must apply state 14 substantive law in adjudicating those claims. 15 Casey, 487 U.S. 131, 151 (1988). 16 limitations and issues relating to tolling are considered 17 substantive state law which federal courts must apply in such 18 cases. 19 (1945)(statute of limitations); Walker v. Armco Steel Corp., 446 20 U.S. 740, 750-52 (1980)(tolling). 21 However, since the parties filed their papers, the Aryeh v. Canon Business Solutions, Inc., 55 Cal. 4th A federal court hearing state law claims over See Felder v. Both state statutes of See Guaranty Trust Co. v. York, 326 U.S. 99, 109 Plaintiffs allege that Defendant has continually failed to 22 provide seating since at least July 7, 2010 through the present. 23 Accordingly, under the continuous accrual rule, Plaintiffs’ UCL 24 claim is not barred by the statute of limitations. 25 C. Representative Allegations 26 Defendant further argues that Plaintiffs’ UCL claim must be 27 dismissed or stricken to the extent it seeks relief on behalf of 28 Plaintiffs and “the current and former employees they represent.” 15 1 As Defendant points out, the California Supreme Court has held 2 that a private party seeking to pursue a representative action 3 under the UCL “must meet the requirements for a class action.” 4 Arias v. Superior Court, 46 Cal. 4th 969, 980 (2009). 5 Defendant argues that Plaintiffs “must plead allegations in their 6 Complaint that satisfy the class certification elements under Rule 7 23.” 8 Defendant’s motion to dismiss on this ground. 9 Motion to Dismiss at 23. Therefore, Plaintiffs do not address However, Defendant provides no authority requiring the Court United States District Court For the Northern District of California 10 to assess the requirements for class certification at the pleading 11 stage. 12 strike class allegations], it is rare that the class allegations 13 are stricken at the pleading stage.” 14 2011 U.S. Dist. LEXIS 96735, at *9-10 n.4 (N.D. Cal.). 15 makes no argument that Plaintiffs’ “allegations are ‘redundant, 16 immaterial, impertinent, or scandalous.’” 17 Rule of Civil Procedure 12(f)). 18 Moreover, “[w]hile courts entertain [Rule 12(f) motions to Clerkin v. MyLife.com, Inc., Defendant Id. (quoting Federal Plaintiffs allege that they represent “current or former 19 employees of AT&T Mobility, who have worked or are currently 20 working as Retail Sales Consultants at AT&T Mobility stores 21 throughout the State of California at some time from July 7, 2010 22 to the present.” 23 Defendant notice of Plaintiffs’ proposed class. 24 with the case as a class action, Plaintiffs will have to file a 25 motion to certify the class. 26 opportunity to challenge whether Plaintiffs’ proposed class meets 27 the requirements of Rule 23. Complaint ¶ 8. This is sufficient to provide Before proceeding At that time, Defendant will have an 28 16 1 2 CONCLUSION For the foregoing reasons, the Court DENIES Defendant’s 3 motion to dismiss or strike. 4 held in this case on Wednesday, April 17, 2013 at 2:00 p.m. in 5 Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612. 6 Pursuant to Civil L.R. 16-9(a), a joint Case Management Statement 7 will be due seven (7) days prior to the conference. 8 A case management conference will be IT IS SO ORDERED. 9 United States District Court For the Northern District of California 10 11 Dated: 3/29/2013 CLAUDIA WILKEN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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