Horton v. Neostrata Company Inc. et al
Filing
88
ORDER granting in part and denying in part 54 Motion to Dismiss for Failure to State a Claim; denying 62 Motion to Remand; granting in part and denying in part 74 Motion to Strike. The Court will permit 24 Seven Defendants twenty-one (21) days to amend its answer to cure the pleading defects pursuant to Federal Rule of Civil Procedure 15(a)(2) and in accordance with the remainder of this order. Signed by Judge Anthony J. Battaglia on 6/22/2017. (acc)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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CANDLE HORTON, KIMBERLEE
WINSTON, and JEANETTE ZDANEK,
individually and
on behalf of themselves and others
similarly situated,
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ORDER:
(1) DENYING PLAINTIFFS’
MOTION TO REMAND; (Doc. No.
62)
Plaintiffs,
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Case No.: 3:16-CV-02189-AJB-JLB
v.
(2) GRANTING IN PART AND
DENYING IN PART DEFENDANT
NEOSTRATA’S MOTION TO
DISMISS OR ALTERNATIVELY TO
STRIKE PORTIONS OF
PLAINTIFFS’ THIRD AMENDED
COMPLAINT; AND
(Doc. No. 54)
NEOSTRATA COMPANY INC., a
Delaware corporation; 24 SEVEN
EMPLOYMENT INC., a
New York corporation, et. al.,
Defendants.
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(3) GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION TO STRIKE
(Doc. No. 74)
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Presently before the Court is Plaintiffs Candle Horton, Kimberlee Winston, and
Jeanette Zdanek’s (collectively referred to as “Plaintiffs”) motion to remand and motion to
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strike, and Defendant NeoStrata Company Inc.’s (“Defendant NeoStrata”) motion to
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dismiss. Having reviewed the parties’ arguments and controlling legal authority, and
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pursuant to Local Civil Rule 7.1.d.1, the Court finds the matters suitable for decision on
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the papers and without oral argument. For the reasons set forth below, the Court DENIES
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Plaintiffs’ motion to remand, (Doc. No. 62), GRANTS IN PART AND DENIES IN
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PART Defendant NeoStrata’s motion to dismiss or alternatively, to strike portions of
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Plaintiffs’ third amended complaint (“TAC”), (Doc. No. 54), and GRANTS IN PART
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AND DENIES IN PART Plaintiffs’ motion to strike. (Doc. No. 74.)
BACKGROUND1
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As the Court is already well-versed as to the alleged facts in this case, for the sake
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of brevity, the Court will only provide a brief summary of the events leading up to the
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institution of this action.
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Plaintiffs, on behalf of themselves and all class members, brings this suit against
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Defendant NeoStrata and 24 Seven Defendants. (See generally Doc. No. 49.) 24 Seven
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Defendants2 serves as a labor contractor for Defendant Neostrata and various other
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companies.3 (Id. ¶ 36.) As a labor contractor, 24 Seven Defendants hired Plaintiffs and
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other class members to sell Defendant Neostrata’s products at various retail locations in
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California. (Id.) Defendant Neostrata’s main line of work is being the exclusive provider
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1
The following facts are taken from the TAC and construed as true for the limited purpose
of resolving the instant motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th
Cir. 2013).
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24 Seven Defendants includes 24 Seven LLC (24 Seven Inc.’s successor), 24 Seven
Staffing LLC (24 Seven Staffing Inc.’s successor), 24 Seven Talent California LLC DBA
24 Seven Creative Solutions (24 Seven Talent California Inc.’s successor), 24 Seven
Recruiting LLC (24 Seven Recruiting Inc.’s successor), and their President and CEO
Gudas. (Doc. No. 49 ¶ 35.) Plaintiffs contend that they are considered one company for
liability purposes based on a Notice and Acknowledgement of Pay Rate and Payday form
that lists the foregoing 24 Seven Companies together as the employer of Plaintiff Winston.
(Id.)
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The Court notes that Plaintiffs also allege in their TAC that 24 Seven Defendants and
Defendant Neostrata are partners and in a partnership agreement. (Id. ¶¶ 47–50.)
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of “Exuviance” skin products. (Id. ¶ 45.)
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In October of 2015, Plaintiff Horton received an unsolicited phone call, where she
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was asked and accepted to join a sales team to sell “Exuviance” products as a Freelance
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Beauty Advisor. (Id. ¶¶ 100–02.) Once hired, Plaintiff Horton was required to report to Mr.
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Tim Dunn and Ms. Megan Banister.4 (Id. ¶ 105.) Plaintiff Horton’s responsibilities
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included working at retail stores, malls, outlets, or boutique stores selling products. (Id. ¶¶
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93–94.) Plaintiff was informed that she would be paid $25.00 an hour regardless of the
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number of sales made. (Id. ¶ 103.)
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Similarly, in October of 2015, Plaintiff Winston began working for 24 Seven
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Defendants before her employment with Defendant Neostrata began on May 16, 2014. (Id.
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¶¶ 107–08.) In November of 2015, Defendant Neostrata and 24 Seven Defendants
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(collectively referred to as “Defendants”) also hired Plaintiff Zdanek. (Id. ¶ 111.) Similar
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to Plaintiff Horton, both Plaintiffs Winston and Zdanek were paid hourly, reported directly
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to Mr. Dunn or Ms. Bannister, and had duties identical to the other named Plaintiffs. (Id.
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¶¶ 109, 112–13.) As to all of the Plaintiffs, Defendant Neostrata via its managers, told
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Plaintiffs where to report for work, when to report to work, how much they were going to
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be paid per hour, and how long they were going to work. (Id. ¶ 122.)
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Notably, Defendants also required Plaintiffs to regularly travel in their personal
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vehicles to more than one establishment in the same workday without compensation for
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their travel time. (Id. ¶ 137.) Plaintiffs allegedly questioned Defendants’ management
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personnel if they would be reimbursed for their mileage or travel time, to which
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management responded in the negative.5 (Id. ¶ 138.)
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Tim Dunn is the key account manager for Defendant Neostrata, and Megan Bannister is
the Skincare Specialist for Exuviance Skincare. (Doc. No. 49 at 113, 115.)
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The Court notes that emails attached to Plaintiffs’ TAC demonstrates the opposite. For
example, an email from Tim Dunn to Plaintiff Winston states that she was to invoice him
for the three hours of travel she accrued. (Id. at 80.) Additionally, in a separate email,
another employee asks Plaintiff Winston to clock an extra hour on her time sheet to cover
her gas expenses. (Id. at 84.)
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In sum, Plaintiffs allege that (1) they were required to work more than forty hours a
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week; (2) Defendants failed to pay them for their intraday travel; (3) Defendants required
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Plaintiffs to not accurately record their time worked; (4) 24 Seven Defendants required
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Plaintiffs to work out of their home, use their personal computers, cell phones, and home
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internet without reimbursement; (5) Defendants failed to permit Plaintiffs from taking all
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meal and rest breaks required by law; and (6) 24 Seven Defendants failed to comply with
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California Sick Pay laws by failing to indicate on their paystubs or in a separate writing the
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number of sick pay hours Plaintiffs had accrued from the inception of their employment.
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(Id. ¶¶ 140–41, 165–66, 172, 186.)
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PROCEDURAL BACKGROUND
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Plaintiff Horton first instituted this action in the Superior Court of California, San
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Diego County on July 20, 2016. (Doc. No. 1-2 at 3.) The case was subsequently removed
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to this Court on August 29, 2016. (Doc. No. 1.)6 On September 2, 2016, Defendant
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Neostrata filed a motion to dismiss or strike portions of Plaintiff Horton’s complaint. (Doc.
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No. 8.) On September 15, 2016, Plaintiff Horton filed her FAC. (Doc. No. 15.) On
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September 29, 2016, Defendant NeoStrata filed a motion to dismiss or strike portions of
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Plaintiff Horton’s FAC, (Doc. No. 19), which was granted on November 22, 2016. (Doc.
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No. 30.) On December 12, 2016, Plaintiffs filed their second amended complaint. (Doc.
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No. 36.) On December 20, 2016, Defendant Neostrata filed its second motion to dismiss,
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(Doc. No. 38), which was granted on March 8, 2017. (Doc. No. 46.)
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On March 30, 2017, Plaintiffs filed their TAC. (Doc. No. 49.) In their TAC, Plaintiffs
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allege violations of (1) failure to pay state overtime wages; (2) failure to pay state
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minimum/regular wages; (3) failure to make payments within the required time; (4)
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violations of Labor Code § 201.3; (5) meal and rest break violations; (6) violation of Labor
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Code § 226; (7) failure to maintain required records in violation of California Labor Code
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Page numbers are in reference to the automatically generated CM/ECF page numbers and
not the numbers listed on the original document.
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§§ 1174; (8) failure to indemnify/ reimburse business expenses in violation of California
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Labor Code § 2802; (9) remedies under the Private Attorney General Act (“PAGA”)
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California Labor Code §§ 2698, 2699, et seq.; and (10) unfair business practices in
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violation of California Business & Professional Code §§ 17000 and 17200 et seq. (Id.) In
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response, Defendant Neostrata filed the present motion its motion to dismiss or
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alternatively, to strike portions of Plaintiffs’ TAC on April 13, 2017. (Doc. No. 54.)
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Subsequently, on May 2, 2017, Plaintiffs filed a motion to remand. (Doc. No. 62.)
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On May 11, 2017, 24 Seven Defendants filed their amended answer to Plaintiffs’ TAC.
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(Doc. No. 68.) In response, Plaintiffs filed a motion to strike 24 Seven Defendants’
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amended answer on May 31, 2017. (Doc. No. 74.)
LEGAL STANDARD
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A.
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A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s
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complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss
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a complaint as a matter of law for (1) lack of a cognizable legal theory or (2) insufficient
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facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal.,
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88 F.3d 780, 783 (9th Cir. 1996) (internal quotation marks and citation omitted). However,
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a complaint will survive a motion to dismiss if it contains “enough facts to state a claim to
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relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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In making this determination, a court reviews the contents of the complaint, accepting all
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factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving
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party. See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972,
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975 (9th Cir. 2007).
Motion to Dismiss
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Notwithstanding this deference, the reviewing court need not accept legal
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conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for
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a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.”
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Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S.
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519, 526 (1983). However, “[w]hen there are well-pleaded factual allegations, a court
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should assume their veracity and then determine whether they plausibly give rise to an
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entitlement to relief.” Iqbal, 556 U.S. at 679.
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B.
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Under 28 U.S.C. § 1441, a defendant may remove a civil action from state court to
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federal court as long as original jurisdiction would lie in the court to which the action is
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removed. 28 U.S.C. § 1441(a); City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156,
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163 (1997). According to the ninth circuit, courts should “strictly construe the removal
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statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
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Any doubt as to the removability of an action should be resolved in favor of remanding the
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Motion to Remand
case to the state court. Id.
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C.
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Under Federal Rule of Civil Procedure 12(f), on its own or by motion, the Court
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“may strike from a pleading an insufficient defense or any redundant, immaterial,
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impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is to
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“avoid the expenditure of time and money that must arise from litigating spurious issues
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by dispensing with those issues prior to trial . . . .” Sidney–Vinstein v. A.H. Robins Co., 697
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F.2d 880, 885 (9th Cir. 1983). The Court must view the pleadings in the light most
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favorable to the non-moving party . . . .” Cal. Dept. of Toxic Substances Control v. Alco
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Pac. Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). “Any doubt concerning the import
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of the allegations to be stricken weighs in favor of denying the motion to strike.” In re Wal-
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Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 614 (N.D. Cal. 2007) (citation
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omitted).
Motion to Strike
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DISCUSSION
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A.
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In the interests of judicial economy, the Court will first turn to Plaintiffs’ motion to
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remand. Plaintiffs argue that 24 Seven Defendants have failed to meet their burden to show
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that this case is subject to federal jurisdiction pursuant to the Class Action Fairness Act
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(“CAFA”). (Doc. No. 62-1 at 2.) Specifically, Plaintiffs argue that 24 Seven Defendants
Motion to Remand
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have failed to make a strong showing that the number of class members exceeds 100 and
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that the amount in controversy exceeds $5,000,000. (Id.) In opposition, Defendants argue
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that Plaintiffs’ motion to remand fails as Plaintiffs offer no evidence to support their
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challenge to 24 Seven Defendants’ amount in controversy. (Doc. No. 69 at 17–19; Doc.
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No. 70 at 28–30.)
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i.
Plaintiffs’ Failure to Provide Evidence Challenging Jurisdiction
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First, the Court will turn to both parties’ contentions that Plaintiffs have failed to
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submit proof illustrating whether the amount in controversy has been satisfied. (Doc. No.
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69 at 17–19; Doc. No. 70 at 28–30.) Plaintiffs retort that the Ninth Circuit has long held
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that the burden in showing whether the amount in controversy requirement is met in CAFA
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is on the removing defendant. (Doc. No. 62-1 at 7; Doc. No. 71 at 7.)
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Case law leaves little doubt that Plaintiffs are wholeheartedly mistaken in arguing
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that they have no burden at this juncture. Plaintiffs are correct that the Ninth Circuit in
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Ibarra v. Manheim Inv., Inc., 775 F.3d 1193 (9th Cir. 2015), held that “the defendant
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seeking removal bears the burden to show by a preponderance of the evidence that the
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aggregate amount in controversy exceeds $5 million when federal jurisdiction is
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challenged.” Id. at 1197. However, the Ninth Circuit in Ibarra also stated that if the
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“defendant’s assertion of the amount in controversy is challenged by plaintiffs in a motion
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to remand, the Supreme Court has said that both sides submit proof and the court then
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decides where the preponderance lies.” Id. at 1198 (emphasis added). See e.g., Dart
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Cherokee v. Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014) (same).
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Based on the foregoing, the Court finds that Plaintiffs have failed to satisfy their
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burden. The only proof Plaintiffs have provided to the Court is contained in their reply
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brief, which succinctly states in two sentences that nowhere in their complaint do they
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allege that the total damages for the entire case exceeds $5,000,000. (Doc. No. 71 at 7.)
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This brief analysis fails to present a competing calculation or analysis of their potential
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damages. Accordingly, as Plaintiffs have failed to satisfy their burden, their motion to
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remand is DENIED. 7
Defendant Neostrata’s Motion to Dismiss or in the Alternative to Strike
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B.
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Defendant Neostrata requests that this Court either dismiss or strike portions of
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Plaintiffs’ TAC. (See generally Doc. No. 54.) Specifically, Defendant Neostrata moves the
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Court to strike (1) references to section 2810.3 from Plaintiffs’ fifth cause of action; (2)
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paragraph 260 of the TAC; (3) references to Labor Code section 223 and 225.5; (4)
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references to alleged meal and rest period violations from Plaintiffs’ UCL claim; and (5)
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Plaintiffs’ class allegations. (Doc. No. 54-1 at 18–28.) Additionally, Defendant Neostrata
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moves to dismiss Plaintiffs’ meal and rest period claims. (Id. at 19–21.)
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i.
Judicial Notice
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As an initial matter, Defendant Neostrata requests in its reply brief that the Court
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take judicial notice of Horton v. Socket Payment Services, a class action complaint filed in
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California Superior Court by Plaintiff Horton, its subsequent first and second amended
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class complaints, and a copy of the civil minutes for the Order re: Defendant Rite Aid
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Corporation’s Motion for Partial Judgment on the Pleadings and Motion to Exclude Claim
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for Waiting Time Penalties from the Pre-Trial Order in Marine Bargas v. Rite Aide Corp.
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(Doc. No. 67-1 at 1–2.) Defendant Neostrata contends that the documents they request
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judicial notice of confirm that it is Plaintiff Horton and her counsel’s operation to file wage-
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hour class action complaints. (Doc. No. 67 at 6.)
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Based on Plaintiffs’ failure to satisfy their burden, the Court will not analyze 24 Seven
Defendants’ additional contentions that Plaintiffs’ complaint concedes the numerosity
requirement, that the removal declaration and 24 Seven Defendant’s answer do not destroy
CAFA jurisdiction, and that 24 Seven Defendants have established the CAFA
requirements, (Doc. No. 69 at 11–23,) or Defendant Neostrata’s assertions that Plaintiffs
are judicially estopped from challenging jurisdiction, and that 24 Seven Defendants have
provided evidence demonstrating that the amount in controversy far exceeds $5,000,000.
(Doc. No. 70 at 14–31.)
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Despite the fact that courts “may take notice of proceedings in other courts . . . if
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those proceedings have a direct relation to the matters at issue,” U.S. ex rel. Robinson
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Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992), the Court
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notes that this request for judicial notice was presented for the first time in Defendant
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Neostrata’s reply brief. Thus, Plaintiffs were not granted the chance to reply in writing.
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Accordingly, as the Court finds it unfair for Defendant Neostrata to save this request until
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its reply brief, the Court DENIES Defendant Neostrata’s request for judicial notice. Hsu
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v. Puma Biotechnology, Inc., 213 F. Supp. 3d 1275, 1284 (C.D. Cal. 2016).
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ii.
Leave to Add Meal or Rest Period Claims
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Next, the Court turns to a procedural matter. Defendant Neostrata contends that
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Plaintiffs’ TAC, which asserts new meal and rest period claims, should be dismissed for
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failure to comply with the Court’s orders. (Doc. No. 54-1 at 17.) For the following reasons,
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the Court concludes that these amendments are proper.
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Federal Rule of Civil Procedure (“FRCP”) 15(a) states that a party may amend a
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pleading once as a matter of course. Fed. R. Civ. P. 15(a). Rule 15(a) further provides that
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the Court should “freely give leave when justice so requires.” Id. at (a)(2). This policy
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regarding leave to amend is to be applied with “extreme liberality.” Morongo Band of
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Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).
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Here, the Court granted Plaintiffs leave to file a third amended complaint “curing
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the deficiencies herein.” (Doc. No. 46 at 12.) Thus, Plaintiffs were granted leave to amend
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their pleading by leave of court. Furthermore, while the Court did specify that Plaintiffs
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were to address the deficiencies in their second amended complaint, the Court did not place
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any limitations on the types of amendments that could be made. Additionally, FRCP 18(a)
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allows a party to assert “as many claims as it has against an opposing party.” Fed. R. Civ.
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P. 18(a). Accordingly, the addition of Plaintiffs’ new meal and rest period claims are
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proper. See Grier v. Brown, 230 F. Supp. 2d 1108, 1111–12 (N.D. Cal 2002) (holding that
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the addition of two new defendants and a new state law cause of action was consistent with
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the FRCP and Rule 15(a) as the court placed “no limitations” on the types of amendments
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to be made).
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iii.
Motion to Dismiss
a.
Meal Period Claims against Neostrata
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Defendant Neostrata makes two arguments in support of its motion to dismiss
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Plaintiffs’ meal period claims. First, it asserts that it is not a joint employer with 24 Seven
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Defendants under the common law. (Doc. No. 54-1 at 19.) Second, it contends that even if
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it is a joint employer that Plaintiffs have failed to set forth separate factual allegations as
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to each of the Defendants. (Id. at 19–20.) Plaintiffs retort that their TAC clearly puts
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Defendant Neostrata on notice that it was the employer that gave Plaintiffs strict
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assignment schedules about which they now complain. (Doc. No. 58 at 8.)
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“[T]he standards to determine whether [d]efendants are directly liable [as joint
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employers] are set out in Martinez v. Combs, 49 Cal. 4th 35 (2010), where the California
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Supreme Court held that the definition of ‘employer’ for minimum wage purposes is
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provided in the orders of California’s Industrial Welfare Commission (“IWC”).” Johnson
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v. Serenity Transp., Inc., 141 F. Supp. 3d 974, 994 (N.D. Cal. 2015). The IWC Wage Order
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provides three alternative definitions for the term “to employ.” Id. It means (1) to exercise
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control over the wages, hours, or working conditions, or (2) to suffer or permit to work, or
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(3) to engage, thereby creating a common law employment relationship. Id.
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Taking Plaintiffs’ allegations as true, the Court finds that Plaintiffs have alleged
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sufficient facts to contend that Defendant Neostrata is a joint employer with 24 Seven
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Defendants under the common law. Plaintiffs plead that both Defendants recruit and
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supervise Plaintiffs, that they implemented several different policies regarding conditions
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of employment, they both paid Plaintiffs under a compensation plan and policy, and that
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they retained and exercised the right to terminate Plaintiffs and the putative class members.
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(Doc. No. 49 ¶¶ 62–67, 95–96.) Based on the foregoing, Plaintiffs’ allegations establishes
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the plausibility that Defendant Neostrata is a joint employer with 24 Seven Defendants.
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See Hibbs-Rines v. Seagate Techs., LLC, No. C 08-05430 SI, 2009 WL 513496, at *5 (N.D.
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Cal. Mar. 2, 2009) (“While [the] plaintiff is not required to conclusively establish that
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defendants were her joint employers at the pleading stage, [the] plaintiff must at least allege
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some facts in support of this legal conclusion.” (citation omitted)).
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Next, as currently pled, the Court finds that Plaintiffs have adequately alleged
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specific facts that explain how each Defendant violated Plaintiffs’ meal period claims.
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Defendant Neostrata contends that Plaintiffs’ allegation that Plaintiff Winston “had just
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enough travel time allocated to her to allow her to report to the next assignments, which
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precluded her from taking an uninterrupted 30-minute meal break,” (Doc. No. 49 ¶ 175),
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fails to specify which Defendants imposed such strict work assignments. However, the
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Court finds that though this sentence does not specifically identify one of the Defendants,
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the Court need only look to the preceding paragraphs in the TAC to see that Plaintiffs plead
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that both Defendant Neostrata and 24 Seven Defendants implemented and enforced
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policies that failed to permit Plaintiffs from taking all of their off-duty breaks. (Id. ¶ 172.)
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Logically, as these sentences are all placed under the same section titled “Meal and Rest
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Break Violations,” the Court finds that Plaintiffs’ TAC is sufficient to put each Defendant
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on notice that their alleged procedures failed to consider the rights of Plaintiffs to enjoy an
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uninterrupted meal break. Based on the foregoing, Defendant Neostrata’s motion to dismiss
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this claim is DENIED.
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b.
Rest Period Claims 8
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Defendant Neostrata claims that Plaintiffs have failed to identify a single day when
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it did not authorize or permit Plaintiffs to take a rest period. (Doc. No. 54-1 at 21.) Plaintiffs
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retort that the allegations as pled in the TAC, read together, present a plausible claim for
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rest break violations. (Doc. No. 58 at 10–12.)
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Section 226.7 states that “[a]n employer shall not require an employee to work during a
meal or rest or recovery period mandated pursuant to an applicable statute, or applicable
regulation, standard, or order of the Industrial Welfare commission . . . .” Cal. Lab. Code
§ 226.7(b).
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Plaintiffs’ rest break claim turns largely on Defendants’ policies. (Doc. No. 49 ¶
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173.) For example, Plaintiffs suggest that Defendants required them to be available by
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phone for calls, texts, or email, and requested that Plaintiffs keep such devices on even
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during rest periods. (Id. ¶ 177.) Due to this, Plaintiffs contend that they were prevented
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from taking all of their uninterrupted rest breaks. (Id.) Moreover, Plaintiffs allege that as
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they often worked alone, taking a meal or rest break was at times impracticable as they had
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products on display that they could not leave unattended. (Id. ¶ 178.)
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Based on these allegations, the Court finds that Plaintiffs have adequately pled why
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and how they were scheduled in a way that prevented them from taking proper rest breaks.
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Accordingly, Defendant Neostrata’s motion to dismiss Plaintiffs’ rest claim is DENIED.
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See Varsam v. Laboratory Corp of Am., 120 F. Supp. 3d 1173, 1178 (S.D. Cal. 2015)
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(“[C]ourts have held that if an employer makes it difficult for employees to take a break or
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undermines a formal policy of providing meal and rest periods, there are sufficient grounds
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to find a violation of the California Labor Code.”).
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iv.
Defendant Neostrata’s Motions to Strike
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As stated supra p. 6, a court may grant a motion to strike if the contested language
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constitutes an “insufficient defense or any redundant, immaterial, impertinent, or
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scandalous matter.” Fed. R. Civ. P. 12(f). Additionally, the Court notes that “[w]hile a Rule
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12(f) motion provides the means to excise improper materials from pleadings, such motions
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are generally disfavored because the motions may be used as delaying tactics and because
21
of the strong policy favoring resolution on the merits.” Barnes v. AT&T Pension Benefit
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Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010). Keeping this
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policy in mind, the Court now turns to Defendant Neostrata’s motions to strike portions of
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Plaintiffs’ TAC.
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a.
Labor Code § 2810.3 Does not Support Meal and Rest Period
Claims
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Defendant Neostrata asserts that as the labor contractor statute limits a client
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employer to only sharing civil liability for the payment of wages, that Plaintiff cannot use
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section 2810.3 for meal and period claims.9 (Doc. No. 54-1 at 18.) Plaintiffs retort that
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Defendant Neostrata has failed to satisfy the three elements in order to strike under Rule
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12(f) and has not shown that the TAC’s language alleging meal and rest period claims are
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“prejudicial.” (Doc. No. 58 at 7.)
5
Under Labor Code § 2810.3, “[a] client employer shall share with a labor contractor
6
all civil legal responsibility and civil liability for all workers supplied by that labor
7
contractor for . . . the payment of wages.” Cal. Lab. Code § 2810.3(b)(1) (emphasis added).
8
Importantly, the Court first notes that it rejects the Rule 12(f) standard Plaintiffs use
9
in their opposition brief. Plaintiffs contend that for Defendant Neostrata to successfully
10
argue its motion to strike under Rule 12(f) that it needs to demonstrate that (1) no evidence
11
in support of the contested allegations would be admissible at trial; (2) the allegations have
12
no bearing on the relevant issues in the case; and (3) denying the motion to strike would
13
prejudice the moving party. (Doc. No. 58 at 7.) The Court finds that neither the FRCP nor
14
applicable case law support this standard. Moreover the cases Plaintiffs cite to support this
15
argument fail to set forth such a test with those three elements.
16
Second, it is clear that section 2810.3 cannot support meal and rest period claims.
17
Section 2810.3 specifically states that it is a claim for payment of wages. Cal. Lab. Code §
18
2810.3(b)(1) (emphasis added). In comparison “a section 226.7 claim is not an action
19
brought for nonpayment of wages; it is an action brought for nonprovision of meal or rest
20
breaks.” Kirby v. Immoos Fire Protection, Inc., 53 Cal. 4th 1244, 1257 (2012) (emphasis
21
added). Moreover, Plaintiffs readily concede in their opposition that Defendant Neostrata
22
“correctly notes that Plaintiffs’ Labor Code § 2810.3 allegations in Plaintiffs’ meal and rest
23
period claims are not directly relevant to their meal and rest period claims because such
24
claims are not for the recovery of ‘wages’ under Labor Code § 2810.3.” (Doc. No. 58 at
25
7.) Thus, finding section 2810.3 “immaterial” in that is has “no essential” relationship to
26
27
28
9
Plaintiffs bring their meal period claim under Labor Code section 226.7. (Doc. No. 54-1
at 18.)
13
3:16-CV-02189-AJB-JLB
1
the meal and rest period claims, and concluding that Defendant Neostrata would be
2
prejudiced from having to litigate a meritless cause of action, the Court GRANTS
3
Defendant Neostrata’s motion to strike from Plaintiffs’ fifth cause of action any references
4
to section 2810.3. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010)
5
(citation omitted).
6
b.
Waiting Time Penalties Based Upon Alleged Meal and Rest Violations
7
Defendant Neostrata asserts that Plaintiffs cannot bring a claim for waiting time
8
penalties based upon alleged meal and rest period violations under section 226.7. (Doc.
9
No. 54-1 at 22.) In opposition, Plaintiffs contend that Defendant Neostrata has
10
misconstrued Plaintiffs’ TAC and that they are not bringing waiting time penalty claims
11
for meal and rest break violations. (Doc. No. 58 at 12.)
12
As currently pled, the Court agrees with Plaintiffs. Defendant Neostrata chooses to
13
direct its focus on Plaintiffs’ statement that they “incorporate by reference the foregoing
14
allegations.” (Doc. No. 54-1 at 22.) However, looking to the third cause of action for
15
waiting time penalties, the Court finds that the paragraphs following paragraph 260 clearly
16
state that Plaintiffs are alleging failure to pay timely earned wages during employment and
17
upon separation of employment in violation of California Labor Code §§ 201, 202, 203,
18
218.5, and 218.6. (Id. at 47.) Furthermore, paragraph 260 through 274 makes no reference
19
to section 226.7. The Court notes that it is cognizant of Defendant Neostrata’s argument
20
that the “incorporate by reference” sentence may be confusing as it incorporates the
21
preceding paragraphs that include meal and rest period allegations in paragraphs 172
22
through 178. (Doc. No. 67 at 9.) However, Defendant Neostrata fails to read the third cause
23
of action as a whole. Based on the foregoing, Defendant Neostrata’s motion to strike
24
paragraph 260 is DENIED.
25
///
26
///
27
///
28
///
14
3:16-CV-02189-AJB-JLB
1
c.
Labor Code Sections 223 and 225.5
2
Defendant Neostrata requests that Labor Code sections 223 and 225.5 be stricken10
3
as Plaintiffs have failed to allege facts that Defendant Neostrata “secretly” paid lower
4
wages. (Doc. No. 54-1 at 23.) Plaintiffs contend that their TAC adequately pleads a section
5
223 and 225.5 claim. (Doc. No. 58 at 12–15.)
6
Section 223 states that “[w]here any statute or contract requires an employer to
7
maintain the designated wage scale, it shall be unlawful to secretly pay a lower wage scale
8
while purporting to pay the wage designated by statute or by contract.” Cal. Lab. Code §
9
223 (emphasis added). Section 223 was “enacted to address the problem of employers
10
taking secret deductions or ‘kickbacks’ from their employees.” Amaral v. Cintas Corp. No.
11
2, 163 Cal. App. 4th 1157, 1205 (2008) (citation omitted). Thus, in cases where a section
12
223 claim is properly pled, the “employer nominally pays employees the wage required by
13
a statute or collective bargaining agreement but then secretly deducts amounts or requires
14
employees to pay back a portion of the wages . . . .” Id. See, e.g., Sublett v. Henry’s Turk
15
and Taylor Lunch, 21 Cal. 2d 273, 274 (1942) (holding that plaintiff’s obligation to return
16
part of their compensation to their employer was a “kickback” scheme to defeat payment
17
of union wages); Shalz v. Union School Dist., 58 Cal. App. 2d 599, 601–02 (1943) (finding
18
violation of section 223 by contractor that agreed to pay prevailing wages but took large
19
deductions, ostensibly for employees’ lodging).
20
Plaintiffs cite to Johnson v. Q.E.D. Envtl. Sys. Inc., Case No. 16-cv-01454-WHO,
21
2016 WL 4658963, at *4 (N.D. Cal. Sep. 7, 2016), to contend that required off-the-clock
22
work is sufficient to state a claim under section 223. (Doc. No. 58 at 14.) The Court finds
23
24
25
26
27
28
10
Plaintiffs allege that this motion to strike is untimely as references to section 223 were
made in their second amended complaint. (Doc. No. 58 at 12–13.) Thus, Plaintiffs request
the Court, within its discretion, deny Defendant Neostrata’s late-filed motion to strike. (Id.)
In the interests of judicial economy, and finding that the case cited by Plaintiffs does not
support this proposition, the Court disagrees with Plaintiffs and will analyze Defendant
Neostrata’s motion to strike this claim.
15
3:16-CV-02189-AJB-JLB
1
Johnson inapposite to the present matter. In Johnson, the court held that plaintiff’s claims
2
that defendants’ policy of “automatically deducting one half hour from employees’
3
timecards for every work day for a meal period, even on those occasions that a full 30
4
minute break was not taken . . .” was sufficient to plead a section 223 claim. Id (emphasis
5
added). Here, Plaintiffs’ TAC is lacking any allegations to suggest that Defendants
6
automatically deducted amounts from their wages. Moreover, Plaintiffs do not plead that
7
Defendants took back previously paid wages or maintained a secret wage scale. In sum,
8
finding Plaintiffs’ section 223 claim inadequately pled, the Court chooses to DISMISS
9
instead of strike Plaintiffs’ section 223 claim.11 See Colaprico v. Sun Microsystems, Inc.,
10
758 F. Supp. 1335, 1339 (N.D. Cal. 1991) (“[M]otions to strike should not be granted
11
unless it is clear that the matter to be stricken could have no possible bearing on the subject
12
matter of the litigation.”).
13
Moreover, as Plaintiffs’ section 225.5 claim makes available penalties for persons
14
who violate section 212, 216, 221, 222, or 223, this claim is also inadequately pled as
15
Plaintiffs do not allege violation of sections 212, 216, 221, or 222. Accordingly, Plaintiffs’
16
section 225.5 claim is also DISMISSED.
17
d.
Meal and Rest Period Violations Within Plaintiffs’ UCL Claim
18
Defendant Neostrata argues that Plaintiffs’ UCL claim should be stricken as a UCL
19
claim cannot be based on alleged meal and rest period violations. (Doc. No. 54-1 at 24–
20
27.) Plaintiffs assert that there is no clear answer from the Ninth Circuit or the California
21
Supreme Court as to whether Plaintiffs can recover section 226.7 premium pay as “wages”
22
under the UCL. (Doc. No. 58 at 15.) Both parties have cited district court cases that support
23
their respective positions.
24
25
26
27
28
11
Plaintiffs request leave to amend their section 223 claims as they contend that this is the
first time it has been pled. (Doc. No. 58 at 14.) However, the Court notes that Plaintiffs
clearly state in their opposition brief that references to Labor Code section 223 were made
in Plaintiffs’ second amended complaint. (Id. at 12.) Thus, this request for leave to amend
is meritless.
16
3:16-CV-02189-AJB-JLB
1
Despite the split in circuit authority, the Court will follow the holding of several
2
central district of California cases,12 as well as a case from this district and find that an
3
award under Section 226.7 is restitutionary and may be recovered under the UCL. The
4
Court finds this holding consistent with the Labor Code’s definition of “wages,” which is
5
“all amounts for labor performed by employees . . . .” Cal. Labor Code § 200(a). Under
6
section 226.7, the employee is paid an amount equal to one hour of regular pay for labor
7
performed during his meal break or rest period. Moreover, though “section 226.7 payment
8
. . . compensates the employee for events other than time spent working,” the payments
9
remain compensatory. Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1113 (2007).
10
As such, they are properly characterized as restitutionary. Pena v. Taylor Farms Pac., Inc.,
11
No. 2:13-CV-01282-KJM-AC, 2014 WL 1665231, at *10 (E.D. Cal. Apr. 23, 2104).
12
Accordingly, Plaintiffs may pursue their meal and rest period violations within their UCL
13
claim and Defendant Neostrata’s motion to strike is DENIED. Dittmar v. Costco
14
Wholesale Corp., CASE No. 14cv1156-LAB (JLB), 2016 WL 3387464, at *3 (S.D. Cal.
15
June 20, 2016) (holding that plaintiff’s UCL claim based on defendant’s failure to provide
16
timely meal breaks could proceed).
17
e.
Plaintiffs’ Proposed Class
18
Defendant Neostrata contends that Plaintiffs’ proposed class should be dismissed or
19
stricken for having an unascertainable definition. (Doc. No. 54-1 at 27.) Plaintiffs retort
20
that Defendant Neostrata’s motion to strike their class claims is premature. (Doc. No. 58
21
at 18–19.)
22
While the Court appreciates the ample briefing provided by both parties on this issue,
23
the Court agrees with Plaintiffs and finds Defendant Neostrata’s motion to strike Plaintiffs’
24
25
26
27
28
12
In Tomlinson v. Indymac Bank, F.S.B., 359 F. Supp. 2d 891 (C.D. Cal. 2005), the court
held that while the matter is not clearly settled, that meal and rest break pay is recoverable
under section 17200 as “payments under Section 226.7 are restitutionary because they are
akin to payment of overtime wages to an employee: [B]oth are ‘earned wages’ and thus
recoverable under the UCL.” Id. at 896
17
3:16-CV-02189-AJB-JLB
1
class allegation to be premature. Generally, courts review class allegations through a
2
motion for class certification. See Moreno v. Baca, No. CV007149ABCCWX, 2000 WL
3
33356835, at *2 (C.D. Cal. Oct. 13, 2000) (finding defendants’ motion to strike the class
4
allegation as premature because no motion for class certification was before the court); see
5
also In re NVIDIA GPU Litig., No. C 08-04312 JW, 2009 WL 4020104, at *13 (N.D. Cal.
6
Nov. 19, 2009) (“A determination of the ascertainability and manageability of the putative
7
class in light of the class allegations is best addressed at the class certification stage of
8
litigation.”). Accordingly, at this point in the litigation, the Court is not prepared to rule on
9
the propriety of Plaintiffs’ class allegations. Consequently, Defendant Neostrata’s motion
10
to strike or in the alternative motion to dismiss the class allegations is DENIED, but
11
WITHOUT PREJUDICE as to Defendant Neostrata’s ability to move to strike or dismiss
12
the class allegations if and when class certification is sought.13
Plaintiffs’ Motion to Strike
13
C.
14
Plaintiffs move to strike all twenty-two of Defendant Neostrata’s affirmative
15
defenses. (Doc. No. 74-1.) In opposition, 24 Seven Defendants contend that Plaintiffs have
16
failed to satisfy the high burden that accompanies motions to strike. (Doc. No. 83 at 6.)
17
i.
Striking of “Insufficient” Affirmative Defenses
18
Plaintiffs assert that all twenty-two of the affirmative defenses that 24 Seven
19
Defendants have pled in its answer to the TAC are insufficient as they fail to give Plaintiffs
20
fair notice and/or because they fail as a matter of law. (Doc. No. 74-1 at 6.)
21
An affirmative defense may be insufficient as a matter of pleading or as a matter of
22
law. Sec. People, Inc. v. Classic Woodworking, LLC, No. C-04-3133 MMC, 2005 WL
23
645592, at *2 (N.D. Cal. Mar. 4, 2005). “The key to determining the sufficiency of pleading
24
25
26
27
28
Based on the foregoing, the Court will not address Defendant Neostrata’s arguments that
Plaintiffs’ PAGA representative action is based on fail-safe definitions and should thus be
dismissed. (Doc. No. 54-1 at 29 (see Kamar v. RadioShack Corp., 375 Fed. App’x 734,
735 (9th Cir. 2010) (where the defendant asserted a “fail-safe” argument after the court had
already certified the class)).)
13
18
3:16-CV-02189-AJB-JLB
1
an affirmative defense is whether it gives the plaintiff fair notice of the defense.” Wyshak
2
v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979). Fair notice generally requires that
3
the defendant articulate the affirmative defense clearly enough that the plaintiff is “not a
4
victim of unfair surprise.” Bd. Of Trustees of San Diego Elec. Pension Trust v. Bigley Elec.,
5
Inc., No. 07-cv-634-IEG (LSP), 2007 WL 2070355, at *2 (S.D. Cal. July 12, 2007) (citation
6
omitted). On a final note, despite district courts being split over the issue of what standard
7
to evaluate affirmative defenses, this Court will follow the Ninth Circuit and review the
8
sufficiency of 24 Seven Defendants’ affirmative defenses under the “fair notice” pleading
9
standard. Roe v. City of San Diego, 289 F.R.D. 604, 609 (S.D. Mar. 5, 2013).
10
Here, 24 Seven Defendants have not alleged sufficient facts to provide notice to
11
Plaintiffs as to the nature of its second, fourth, ninth, twelfth, thirteenth, fourteenth, and
12
fifteenth affirmative defenses. Specifically, in none of these seven affirmative defenses
13
does 24 Seven Defendants point to the existence of some identifiable fact that if applicable
14
to Plaintiffs or another class member would make the affirmative defense plausible on its
15
face. Instead, 24 Seven Defendants “simply lists a series of conclusory statements asserting
16
the existence of an affirmative defense without stating a reason why that affirmative
17
defense might exist.” Barnes, 718 F. Supp. 2d at 1172.
18
Accordingly, the Court GRANTS Plaintiffs’ motion to strike 24 Seven Defendants’
19
second (statute of limitations), fourth (waiver), ninth (offset), twelfth (accord and
20
satisfaction/release), thirteenth (privilege/legitimate business reasons), fourteenth (no
21
knowledge, authorization, or ratification), and fifteenth (Labor Code § 2856) affirmative
22
defenses.
23
ii.
Affirmative Defenses Adequately Pled
24
As to 24 Seven Defendants’ third (estoppel), fifth (laches), tenth (ratification),
25
eleventh (de minimis), and seventeenth (avoidable consequences) affirmative defenses, the
26
Court finds them adequately pled as they give Plaintiffs fair notice of the defense and they
27
are all supported by a valid factual basis. Specifically, 24 Seven Defendants state the nature
28
and grounds for the affirmative defense in such a way that it gives Plaintiffs fair notice of
19
3:16-CV-02189-AJB-JLB
1
what the defense may entail. Accordingly, based on this, as well taking into account the
2
disfavored status of motions to strike, the Court DENIES Plaintiffs’ motions to strike the
3
foregoing affirmative defenses. Barnes, 718 F. Supp. 2d at 1170 (“While a Rule 12(f)
4
motion provides the means to excise improper materials from pleadings, such motions are
5
generally disfavored because the motions may be used as delaying tactics and because of
6
the strong policy favoring resolution on the merits.”).
7
iii.
Striking of Non-Affirmative Defenses
8
Though Plaintiffs do not argue this contention, the Court finds it appropriate to strike
9
several other affirmative defenses pled by 24 Seven Defendants finding that they are non-
10
affirmative defenses. Accordingly, the Court GRANTS Plaintiffs’ motion to strike 24
11
Seven Defendants’ seventh affirmative defense (no standing), see ABC Distributing, Inc.
12
v. Living Essentials LLC, Case No. 15-cv-02064 NC, 2016 WL 8114206, at *2 (N.D. Cal.
13
Apr. 26, 2016) (holding that lack of standing is not an affirmative defense), eighth
14
affirmative defense (excessive penalties unconstitutional), see J&J Sports Prods., Inc. v.
15
Ramirez Bernal, No. 1:12-cv-01512-AWI-SMS, 2014 WL 2042120, at *6 (E.D. Cal. May
16
16, 2014) (granting motion to strike affirmative defense of excessive damages because it
17
merely countered the allegations in the complaint regarding damages, and thus needed to
18
be pled in the “relevant section of the answer”), sixteenth affirmative defense (res judicata
19
and collateral estoppel), see Vargas v. Cnty. of Yolo, No. 2:15-CV-02537-TLN-CKD, 2016
20
WL 3916329, at *9 (E.D. Cal. July 20, 2016) (striking the affirmative defenses for
21
collateral estoppel and res judicata as the related case had not yet reached a final
22
judgment),14 and twentieth affirmative defense (good faith dispute), see Gomez v. J. Jacobo
23
Farm Labor Contractor, Inc., 188 F. Supp. 3d 986, 1001 (E.D. Cal. 2016) (“There is no
24
good faith mistake of law defense under the California Labor Code.”).
25
26
27
28
14
The Court notes that 24 Seven Defendants do not plead that there is any prior or present
legal proceeding that will affect Plaintiffs’ claims in the present matter. (Doc. No. 68 at
57.)
20
3:16-CV-02189-AJB-JLB
1
iv.
Defenses that Do Not Need Further Factual Support at this Juncture
2
As to 24 Seven Defendants’ sixth (unclean hands), eighteenth (failure to mitigate),
3
nineteenth (contribution by Plaintiffs’ own acts), and twenty-first (willfulness) affirmative
4
defenses, the Court finds that these defenses can survive the motion to strike as 24 Seven
5
Defendants do not need to plead substantial supporting facts to support the defenses at this
6
time. For example, several courts have held that “where discovery has barely begun, the
7
failure to mitigate defense is sufficiently pled without additional facts.” Ganley v. Cnty. of
8
San Mateo, No. C06-3923 THE, 2007 WL 902551, at *6 (N.D. Cal. Mar. 22, 2007)
9
(citation omitted). The Court finds that this same analysis applies to the sixth, nineteenth,
10
and twenty-first affirmative defenses. Thus, as the discovery cut-off date is set for February
11
6, 2018, (Doc. No. 85 at 2), the Court cannot say at this juncture that other facts may not
12
come to light later down the road. Thus, Plaintiffs’ motion to strike 24 Seven Defendants’
13
sixth, eighteenth, nineteenth, and twenty-first affirmative defenses is DENIED.
14
iv.
First Affirmative Defense: No Employment Relationship
15
24 Seven Defendants’ first affirmative defense alleges that they did not employ
16
Plaintiffs. (Doc. No. 68 at 53.) Plaintiffs allege that this affirmative defense contradicts 24
17
Seven Defendants’ removal papers that stated that it was Plaintiffs’ employers. (Doc. No.
18
74-1 at 7.) Thus, under the doctrine of judicial estoppel, Plaintiffs contend that 24 Seven
19
Defendants are precluded from changing their position through submission of an
20
inconsistent and contradictory pleading. (Id.)
21
The Court finds that “there is nothing in the Federal Rules of Civil Procedure to
22
prevent a party from filing successive pleadings that make inconsistent or even
23
contradictory allegations. Unless there is a showing that the party acted in bad faith . . .
24
inconsistent allegations are simply not a basis for striking the pleading.” See PAE Gov’t
25
Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 860 (9th Cir. 2007). Accordingly, finding no bad
26
faith on the part of 24 Seven Defendants, the Court DENIES Plaintiffs’ motion to strike
27
24 Seven Defendants’ first affirmative defense.
28
///
21
3:16-CV-02189-AJB-JLB
1
v.
Twenty-Second Affirmative Defense: Pending Discovery
2
Plaintiffs contend that “pending discovery” is not an affirmative defense. (Doc. No.
3
74-1 at 18.) In their opposition brief, 24 Seven Defendants withdrew this defense as they
4
agreed that it is not a valid affirmative defense. (Doc. No. 83 at 15.) Accordingly, Plaintiffs’
5
motion to strike 24 Seven Defendants’ twenty-second affirmative defense is DENIED as
6
MOOT.
CONCLUSION
7
8
For the reasons set forth above, the Court ORDERS as follows:
9
(1) Plaintiffs’ motion to remand is DENIED;
10
(2) Defendant Neostrata’s motion to dismiss Plaintiffs’ meal and rest period claims
11
is DENIED;
12
(3) Any references to section 2810.3 in Plaintiffs’ fifth cause of action is
13
STRICKEN;
14
(4) Defendant Neostrata’s motion to strike paragraph 260 and references to alleged
15
meal and rest period violations in Plaintiffs’ UCL claim is DENIED;
16
(5) Plaintiffs’ section 223 and 225.5 claims are DISMISSED;
17
(6) Defendant Neostrata’s motion to dismiss Plaintiffs’ class allegations is
18
DENIED WITHOUT PREJUDICE;
19
20
21
22
23
24
(7) Plaintiffs’ motion to strike 24 Seven Defendants’ second (statute of
limitations), fourth (waiver), seventh (no standing), eighth (excessive penalties
unconstitutional), ninth (offset), twelfth (accord and satisfaction/release), thirteenth
(privilege/legitimate business reasons), fourteenth (no knowledge, authorization, or
ratification), fifteenth (Labor Code § 2856), sixteenth (res judicata & collateral
estoppel), and twentieth (good faith dispute) affirmative defenses is GRANTED;
and
25
(8) Plaintiffs’ motion to strike 24 Seven Defendants’ first (no employment
26
relationship), third (estoppel), fifth (laches), sixth (unclean hands), tenth
27
(ratification), eleventh (de minimis), seventeenth (avoidable consequences),
28
eighteenth (failure to mitigate), nineteenth (contribution by Plaintiffs’ own acts),
22
3:16-CV-02189-AJB-JLB
1
twenty-first (willfulness), and twenty-second (pending discovery) affirmative
2
defenses is DENIED.
3
The Court will permit 24 Seven Defendants twenty-one (21) days to amend its answer to
4
cure the pleading defects pursuant to Federal Rule of Civil Procedure 15(a)(2) and in
5
accordance with the remainder of this order.
6
On a final note, Plaintiffs request that this Court allow them one additional chance
7
to amend their complaint. However, finding that this is Plaintiffs’ third amended complaint,
8
the Court within its discretion finds it unsuitable for Plaintiffs to file a fourth amended
9
complaint. See Ascon Prop., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)
10
(“The district court’s discretion to deny leave to amend is particularly broad where plaintiff
11
12
13
14
15
16
has previously amended the complaint.”). Moreover, the Court notes that the scheduling
order set by Magistrate Judge Jill Burkhardt states that the deadline to file any motion to
amend the pleadings is set for June 30, 2017. (Doc. No. 85 at 1.) Accordingly, the Court
DENIES Plaintiffs’ request for leave to file a fourth amended complaint. See Dutciuc v.
Meritage Homes of Arizona, Inc., 462 Fed. App’x 658, 660 (9th Cir. 2011) (finding that
the district court acted within its discretion in dismissing plaintiff’s TAC without leave to
amend).
17
18
IT IS SO ORDERED.
19
Dated: June 22, 2017
20
21
22
23
24
25
26
27
28
23
3:16-CV-02189-AJB-JLB
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