Mireles et al v. Paragon Systems Inc. et al

Filing 46

ORDER denying 34 Plaintiffs motion to strike Defendants 28th, 29th, and35th affirmative defenses in the First Amended Answer. Signed by Judge M. James Lorenz on 7/8/2013. (sjt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11 CRUZ MIRELES, et. al.,
Plaintiffs,

12
13 v.

14 PARAGON SYSTEMS INC.,
Defendant.

15
16
17

)
)
)
)
)
)
)
)
)
)
)

Case No.: 3: 13-cv-00122-L-BGS
ORDER DENYING MOTION TO
STRIKE [Doc. #34.]

On May 24, 2013, Plaintiffs filed a motion to strike three affirmative defenses from

18 Defendant Paragon Systems, Inc.’s First Amended Answer. [Doc. # 34.] The motion has been
19 fully briefed and is decided without oral argument.
20 1.

Background

21

Plaintiffs, on behalf of themselves and all others similarity situated, filed this putative

22 class action against Defendant seeking unpaid wages and compensation for withheld meal and
23 rest periods. (Comp. ¶ 1.) Defendant, a California corporation conducting substantial business in
24 San Diego County, employed the named Plaintiffs as security officers. (Id. ¶¶ 4-18.) Plaintiffs
25 assert eight causes of action: (1) failure to provide meal period premium pay under California
26 Labor Code §§ 226.7, 512 and California Code of Regulations Title 8, § 11040; (2) failure to
27 provide rest break premium pay under California Labor Code §§ 226.7, 512 and California Code
28 of Regulations Title 8, § 11040; (3) failure to pay overtime premium pay under California Labor
13cv0122

1 Code §§ 510 and 1198; (4) failure to reimburse/indemnify under California Labor Code § 2802;
2 (5) failure to provide accurate itemized wage statements under California Labor Code §§ 226
3 and 1174; (6) failure to promptly pay wages owed under California Labor Code §§ 201-204; (7)
4 unfair and unlawful business practices under California Business and Professions Code §§
5 17200, et. seq.; and (8) violation of California Private Attorney General Act of 2004 (“PAGA”).
6

Defendant answered, asserting thirty-six affirmative defenses. [Doc. # 30.] Plaintiffs

7 move to strike Defendant’s 29th, 35th and 28th affirmative defenses as insufficient.
8 2.

Rule 12(f) Legal Standard

9

Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a pleading

10 any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.
11 R. Civ. P. 12(f). Motions to strike are “generally disfavored because they are often used as
12 delaying tactics and because of the limited importance of pleadings in federal practice.” Rosales
13 v. Citibank, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001). A federal court will not exercise its
14 discretion under Rule 12(f) to strike a pleading unless the matters sought to be omitted have no
15 possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party.
16 Ollier v. Sweetwater Union High Sch. Dist., 735 F. Supp. 2d 1222, 1223 (2010). In other words,
17 “[m]otions to strike generally will not be granted unless it is clear that the matter to be stricken
18 could not have any possible bearing on the subject matter of the litigation.” In re Facebook PPC
19 Adver. Litig., 709 F.Supp.2d 762, 773 (N.D. Cal. 2010). When considering a motion to strike,
20 the court “must view the pleadings in a light most favorable to the pleading party.” In re
21 2TheMart .com, Inc., 114 F. Supp. 2d 955, 965 (2000). Finally, Rule 12(f) “does not authorize a
22 district court to strike a claim for damages on the ground that such damages are precluded as a
23 matter of law.” Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 971 (2010).
24

As noted above, a court may strike a pleading that is: (1) redundant, (2) immaterial, (3)

25 impertinent, or (4) scandalous. FED. R. CIV. P. 12(f). An “immaterial” matter has no essential or
26 important relationship to the claim for relief or defenses pleaded. Cal. Dept. of Toxic Substances
27 Control v. ALCO Pac., Inc., 217 F. Supp. 2d 1028, 1032 (C.D. Cal. 2002) (internal citations and
28 quotations omitted). An “impertinent” allegation is neither responsive nor relevant to the issues
2

13cv0122

1 involved in the action. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (1993) (rev'd on other
2 grounds). A scandalous pleading is one which “improperly casts a derogatory light on someone,
3 most typically on a party to the action.” Aoki v. Benihana, Inc., 2012 WL 899691 at *3 (D. Del.
4 2012) (internal citations omitted).
5 3.

Discussion

6

a.

7

“Under Rule 201 of the Federal Rules of Evidence, a court may take judicial notice of a

Plaintiffs’ Request for Judicial Notice

8 fact that is not ‘subject to reasonable dispute’ because ‘it is either (1) generally known within the
9 territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by
10 resort to sources whose accuracy cannot reasonably be questioned.’ Judicial notice ‘may be
11 taken at any stage of the proceeding.’ Further, judicial notice is mandatory ‘if requested by a
12 party and supplied with the necessary information.’ ” Austero v. Aurora Loan Servs. Inc., C-1113 00490 JCS, 2011 WL 1585530 (N.D. Cal. Apr. 27, 2011) (citing Fed. R. Evid. 201(a, f, d)).
14

Plaintiffs ask the Court to take judicial notice of the following documents:

15

1.

Exhibit A: Copy of the Collective-Bargaining Agreement (“CBA”) between

16 Paragon Systems Incorporated and the United Government Security officers of America
17 International Union, and its affiliated Local 52, effective March 17, 2008. This document was
18 previously attached to Defendant’s Notice of Removal filed January 16, 2013.
19

2.

Exhibit B: Copy of the CBA between Paragon Systems Incorporated and the

20 United Government Security Officers of America International Union, and its affiliated Local
21 52, effective November 20, 2010. This document was previously attached to Defendant’s Notice
22 of Removal filed January 16, 2013.
23

3.

Exhibit C: Copy of the CBA between Paragon Systems Incorporated and the

24 International Union, Security, Police, and Fire Professionals of America and its affiliated Local
25 52, effective August 31, 2011 through November 13, 2014. This document was previously
26 attached to Defendant’s Notice of Removal filed January 16, 2013.
27

4.

Exhibit D: Copy of the CBA between Paragon Systems Incorporated and the

28 United Government Security Officers of America, International Union, and its affiliated Local
3

13cv0122

1 330, effective December 22, 2012 through December 21, 2013. This document was produced by
2 Defendant on May 22, 2013. (Dec. of Matthew Butler, ¶ 3.)
3

5.

Exhibit E: Copy of the preamble between Paragon Systems Incorporated and the

4 International Union, Security, Police, and Fire Professionals of America and its affiliated Local
5 52, effective August 1, 2010 through September 30, 2013. Defendant produced this document on
6 May 22, 2013. (Dec. of Matthew Butler, ¶ 3.)
7

6.

Exhibit F: Copy of the Amendment to the Agreement between Paragon Systems

8 Incorporated and the International Union, Security, Police, and Fire Professionals of America
9 and its affiliated Local 52, effective August 1, 2010 through September 30, 2013. Defendant
10 produced this document on May 22, 2013. (Dec. of Matthew Butler, ¶ 3.)
11

The documents marked as Exhibits A-F have been authenticated and are undisputed;

12 therefore, the Court takes judicial notice of Plaintiff’s exhibits.
13

b.

Defendant’s 29th, 35th Affirmative Defenses

14

Plaintiffs argue that Defendant’s 29th and 35th affirmative defenses are insufficient. Both

15 defenses are based on the CBA exception to Labor Code §§ 510 and 512(a) found in Labor Code
16 §§ 512(e) and 514, respectively. Labor Code § 514 provides as follows:
17
18
19

Sections 510 and 511 do not apply to an employee covered by a valid
collective bargaining agreement if the agreement expressly provides for the
wages, hours of work, and working conditions of the employees, and if the
agreement provides premium wage rates for all overtime hours worked and
a regular hourly rate of pay for those employees of not less than 30 percent
more than the state minimum wage.”

20
Labor Code § 514.
21
Labor Code § 512 provides:
22
23

Subdivisions [512](a) and (b) do not apply to an employee specified in
subdivision (f) if both of the following conditions are satisfied:

24

(1) The employee is covered by a valid collective bargaining agreement.

25

(2) The valid collective bargaining agreement expressly provides for the
wages, hours of work, and working conditions of employees, and expressly
provides for meal periods for those employees, final and binding arbitration of
disputes concerning application of its meal period provisions, premium wage
rates for all overtime hours worked, and a regular hourly rate of pay not less
than 30 percent more than the state minimum wage rate.

26
27
28

4

13cv0122

1 Labor Code §514. Plaintiffs contend that the CBAs are inadequate because they do not expressly
2 provide for overtime wages. Plaintiffs’ reasoning rests on an interpretation of the CBAs. But the
3 validity of the CBAs are not at issue at this time, but the sufficiency of the defense is. There are
4 threshold issues of fact and law as to whether the CBAs provide an exception to Labor Code §§
5 510 and 512(a). A motion to strike is not to decide the merits of a case, but rather to decide
6 whether the defenses asserted are so implausible that they are insufficient to preclude Defendant
7 from liability.
The authority Plaintiffs cite rests on the subtleties of the CBAs in the individual cases. In
8
9 particular, Plaintiffs rely on Gregory v. SCIE, LLC, 317 F.3d 1050 (9th Cir. 2003). In Gregory,
10 there was no dispute over the interpretation of the CBAs. Id. at 1053. This is not the case here.
11 Defendant has sufficiently presented a plausible argument that the CBAs’ terms may provide an
12 exception to Plaintiffs’ claims. Therefore, the Court will not strike the 29th and 35th affirmative
13 defenses as insufficient.
Additionally, Plaintiffs move to strike Defendant’s 29th and 35th defenses as insufficient
14
15 because a CBA cannot functionally negotiate away state law protections. Specifically, Plaintiffs
16 argue that the CBAs redefine overtime in a manner inconsistent with Section 510. Plaintiffs
17 interpret the law to mean that Defendant must provide the same premium pay as state law, and
18 Defendants contend otherwise. As noted, whether or not the CBAs adhere to the labor protection
19 laws is a question on the merits of the case that cannot not be decided at this time. Defendant has
20 sufficiently presented cases and other relevant authority to counter Plaintiffs’ argument for the
21 Court to deny Plaintiffs’ motion to strike Defendant’s 29th and 35th affirmative defenses.
c.
Defendant’s 28th Affirmative Defense
22
23

Plaintiffs also contend that Defendant’s 28th affirmative defense is insufficient and

24 immaterial because Plaintiffs’ claims are not preempted by Section 301 of the Labor Management
25 Relations Act (29 U.S.C. § 185). Defendant disagrees, arguing that the defense is sufficient
26 because the claim requires interpretation of the CBAs. Section 301 of the LMRA governs claims
27 founded directly on the rights created by collective-bargaining agreements, and is “substantially
28 dependent on the analysis of a collective-bargaining agreement.” Caterpillar Inc. v. Williams, 482
5

13cv0122

1 U.S. 386, 394 (1987). This analysis relies on the §§ 512(e) and 514 exemptions. If the exemptions
2 apply, then the violations are not applicable. Analysis of the CBAs, Plaintiffs’ wage statements,
3 and testimony are all required to interpret whether or not a violation of §§ 510(a) and 512(a)
4 exists, or if they are preempted by § 301 of the Labor Management Relations Act. Questions of
5 substantive law are not intended to be resolved in a motion to strike. Plaintiffs’ have failed to
6 show that there is no set of circumstances in which Defendant can prevail. See SEC v. Sands 902
7 F.Supp 1165 (C.D. Cal. 1995) (in moving to strike affirmative defense as insufficient, plaintiff
8 must demonstrate that under no set of circumstances could defense succeed). Furthermore,
9 Plaintiffs have not shown that Defendant’s 28th affirmative defense is immaterial because they
10 have not demonstrated that the defense “could have no possible bearing on the subject matter of
11 the litigation.” Terry v. McBride, 2009 U.S. Dist LEXIS 89736 at *30 (S.D. Cal. 2009).
Conclusion and Order
12 4.
13

Plaintiffs have failed to meet their burden to prove that Defendant’s affirmative defenses

14 are “insufficient” or “immaterial.” There are a variety of circumstances within which Defendant
15 may prevail on its defenses. Accordingly, Plaintiff’s motion to strike Defendant’s 28th, 29th, and
16 35th affirmative defenses in the First Amended Answer is hereby DENIED.
IT IS SO ORDERED.
17
18 DATED: July 8, 2013
19
20

M. James Lorenz
United States District Court Judge

21
22 COPY TO:
23 HON. BERNARD G. SKOMAL
UNITED STATES MAGISTRATE JUDGE
24
25 ALL PARTIES/COUNSEL
26
27
28
6

13cv0122