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denying plaintiff leave to amend notice to the LWDA because "allowing amended notice to be submitted after the civil action has already been filed defeats the very purpose of the exhaustion requirement, which is to give the LWDA the opportunity to make an informed decision about whether to pursue the matter itself"
Summary of this case from Gunn v. Family Dollar Stores, Inc.Opinion
Case No. CV 12-1750-GHK (SSx)
07-03-2013
Sasha Ovieda, et al. v. Sodexo Operations, LLC, et al.
CIVIL MINUTES - GENERAL
Presiding: The Honorable GEORGE H. KING , CHIEF U.S. DISTRICT JUDGE Beatrice Herrera
Deputy Clerk N/A
Court Reporter / Recorder N/A
Tape No. Attorneys Present for Plaintiffs: None Attorneys Present for Defendants: None Proceedings: (In Chambers) Order re: Defendants' Motion for Judgment on the Pleadings as to Plaintiffs' Tenth Claim for Civil Penalties Under PAGA (Dkt. No. 127)
This matter is before us on Defendants Sodexo Operations, LLC and Sodexo, Inc.'s ("Defendants") Motion for Judgment on the Pleadings as to Plaintiffs' Tenth Claim for Civil Penalties Under PAGA ("Motion"). We have reviewed the papers filed in support of and in opposition to the Motion and deem this matter appropriate for resolution without oral argument. L.R. 7-15. As the Parties are familiar with the facts, we will repeat them only as necessary. Accordingly, we rule as follows.
I. Background
On August 24, 2011, Plaintiff Sasha Ovieda ("Ovieda") filed this wage and hour class action against Defendants. The original complaint asserted ten claims based on various violations of the California Labor Code and a claim for a representative action to recover civil penalties under the Private Attorney General Act ("PAGA"). On May 7, 2012, we granted Defendants' motion to dismiss based on insufficient allegations, in large part because the complaint merely "parrot[ed] the relevant statutory language with respect to each of her claims." (Dkt. No. 53, at 4). When Defendants again moved to dismiss Ovieda's First Amended Complaint, we granted only their motion to dismiss the uniform expense reimbursement claim. (Dkt. No. 66, at 6). On October 22, 2012, we allowed Ovieda to file the operative Second Amended Complaint ("SAC"), which added Brenda Espinosa ("Espinosa") and Enrique Ramos ("Ramos," and collectively with Ovieda and Espinosa, "Plaintiffs") as named plaintiffs. (Dkt. No. 82). On April 11, 2013, we struck Plaintiffs' class claims after they failed to file a class certification motion by the deadline set forth in our Scheduling Order. (Dkt. No. 112). Thus, the SAC currently asserts one PAGA representational claim, along with nine individual claims based primarily on Defendants' alleged failure to provide compliant meal and rest breaks and to pay all wages owed.
Defendants' instant Motion seeks judgment on the pleadings on the PAGA claim based on Plaintiffs' alleged failure to adequately exhaust the administrative notice requirement, which requires a private plaintiff to send a written notice to both the employer and the California Labor and Workplace Development Agency ("LWDA") before asserting a PAGA claim in a civil action.
II. Legal Standard
Because "Rule 12(c) is functionally identical to Rule 12(b)(6)," Rule 12(b)(6) standards generally apply to Rule 12(c) motions. See Cafaso, U.S. ex rel. v. General Dynamics C4 Sys, Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). Although review under Rule 12(b)(6) is generally limited to the contents of the complaint, we may "consider certain materials - documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice - without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Thus, "[e]ven if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the . . . document forms the basis of the plaintiff's claim." Id. This "incorporation by reference doctrine" has been extended "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). Matters of public record are generally proper subjects of judicial notice. See, e.g., Grant v. Aurora Loan Servs., Inc., 736 F. Supp. 2d 1257, 1264 (C.D. Cal. 2010).
Here, Defendants request that we take judicial notice of Ovieda's September 7, 2010 notice letter, the PAGA notice letter filed by the plaintiffs in Lessard v. Trinity Protection Servs, Inc., 2010 WL 3069265 (E.D. Cal. Aug. 3, 2010), and the PAGA notice letter filed by the plaintiffs in Cardenas v. McLane FoodServices, Inc., 796 F. Supp. 2d 1246 (C.D. Cal. 2011). We may appropriately consider Ovieda's letter because her PAGA claim depends on the sufficiency of the letter's content, and Plaintiffs do not dispute its authenticity. The notice letters in Lessard and Cardenas are appropriate subjects of judicial notice as they are part of the public record of those respective proceedings. Accordingly, Defendants' Requests for Judicial Notice, (Dkt. Nos. 129, 135), are GRANTED.
This letter was sent to Defendants, not to the LWDA, but its content is identical in relevant parts to Ovieda's letter to the LWDA that is quoted in Plaintiff's Opposition. (See Opp'n 1-2).
III. Discussion
Defendants contend that Plaintiffs did not adequately satisfy PAGA's exhaustion requirement because (1) Espinosa and Ramos did not send any notice to the LWDA; (2) to the extent Ovieda had sent a notice to the LWDA on September 7, 2010, that letter failed to set forth the requisite "facts and theories" to support the alleged Labor Code violations; and (3) even if Ovieda's LWDA letter were otherwise adequate, the scope of Plaintiffs' PAGA claim exceeds that of the notice. Plaintiffs do not dispute that Espinosa and Ramos never sent any notice to the LWDA; they argue only that Ovieda should be permitted to proceed with a representative PAGA action on behalf of herself and other similarly situated employees. (Opp'n 1 n.1). Accordingly, the principal issue is whether Ovieda's notice included sufficient "facts and theories to support the alleged violation[s]" within the meaning of Cal. Labor Code § 2699.3(a).
A. Defendants Did Not Waive the Failure to Exhaust Defense
As a preliminary matter, Plaintiffs appear to argue that Defendants should be barred from raising the failure to exhaust defense because Defendants "never brought [the exhaustion defense] to the attention of the Court in their filing of both Motions to Dismiss in 2012, even though they sought to dismiss Plaintiff's representative PAGA cause of action, in addition to the class action claims." (Opp'n 4). To the extent Plaintiffs are arguing that Defendants waived this defense by failing to raise it in their prior motions, we reject this argument. Here, the failure to exhaust defense is in essence a failure to state a claim defense, which may be raised by a motion under Rule 12(c). FRCP 12(h)(2)(B) ("Failure to state a claim upon which relief can be granted . . . may be raised . . . in any pleading allowed or ordered under Rule 7(a) . . . by a motion under Rule 12(c); . . . or at trial."); see also Alcantar v. Hobart Serv., 2013 WL 228501, at *5 (C.D. Cal. Jan. 22, 2013) (concluding that the employer did not waive the failure to exhaust defense by waiting until the eve of trial to raise the defense). Accordingly, Defendants have properly raised this defense on a motion for judgment on the pleadings under FRCP 12(h)(2)(B).
To the extent that a defense of lack of exhaustion is more properly brought as an unenumerated Rule 12(b) motion, it is likewise not covered by the waiver provisions of Rule 12(h)(1).
B. Ovieda's September 7, 2010 LWDA Letter Did Not Contain the Requisite "Facts and Theories"
PAGA was enacted in 2003 in response to a shortage of state funds and staffing to enforce state labor laws. Thurman v. Bayshore Transit Mgmt, Inc., 203 Cal. App. 4th 1112, 1125 (Ct. App. 2012). It allowed "aggrieved employees, acting as private attorneys general, to recover civil penalties for Labor Code violations, with the understanding that labor law enforcement agencies were to retain primacy over private enforcement efforts." Id. Consistent with this goal, PAGA sets forth an administrative exhaustion requirement to give the LWDA "the initial opportunity to investigate and cite employers for Labor Code violations." Id. at 160. Specifically, under § 2699.3(a),
The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation."Before an employee may file an action seeking to recover civil penalties for violations of any of the Labor Code provisions enumerated in section 2699.5, . . . he or she must comply with the Act's administrative procedures as set forth in section 2699.3, subdivision (a)." Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 370 (Ct. App. 2005).
To constitute adequate notice under § 2699.3(a), the notice must allege at least some "facts and theories" specific to the plaintiff's principal claims; merely listing the statutes allegedly violated or reciting the statutory requirements is insufficient. See, e.g., Alcantar, 2013 WL 228501, at *4 (concluding that allegation that the employer failed "to provide off-duty meal periods and to pay compensation for work without off-duty meal periods to its California employees" did not adequately set forth "facts and theories" in support of a meal break claim); Soto v. Castlerock Farming and Transport, Inc., 2012 WL 1292519, *8 (E.D. Cal. Apr. 16, 2012) (concluding that the allegation that "[p]ayment has not been made for all work actually required and permitted to be performed, and for all rest and meal periods" did not provide sufficient "facts and theories" in support of the alleged labor code violations); Archila v. KFC U.S. Properties, Inc., 420 Fed. Appx. 667, 669 (9th Cir. Mar. 1, 2011) (concluding that a letter that "merely lists several California Labor Code provisions . . . and requests that KFC conduct an investigation" did not contain sufficient "facts and theories"). Absent facts specific to the alleged violations, a notice cannot fulfill the purpose of enabling the LWDA to make an informed decision about whether to pursue the investigation itself. See Thurman, 203 Cal. App. 4th at 1125.
Here, Ovieda's notice merely recites the statutory requirements Defendants allegedly violated:
Rest periods were either less than ten minutes, not provided, interrupted or late as prescribed by California law. Meal periods were either less than thirty minutes, were late (starting after the fifth hour of work), not given at all or interrupted. Employees were not given a second meal period when they worked shifts of ten hours or more. Employees were not paid an hour's wage when meal and rest periods were not given to them in compliance with California law . . . . [Defendants maintain] an illegal meal period policy, rest period policy and uniform policy depriving employees of earned wages.(Opp'n 2); compare with, e.g., Cal. Labor Code § 512(a) ("An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes . . . . An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes . . . . ). The notice contains no facts specific to Ovieda's principal meal and rest break claim and unpaid wages claim and no information about what Defendants' allegedly illegal policy and practices are. Accordingly, we conclude that Ovieda's notice does not include the requisite "facts and theories" under § 2699.3(a).
The letter does include the following fact that is more specific than her other allegations: "Employees were required to purchase and wear uniforms and were not reimbursed for such uniforms by Sodexo." This allegation, however, pertains only to the uniform reimbursement claim that we eventually dismissed and says nothing about the basis of Plaintiffs' principal meal and rest break claim or unpaid wages claim. As a result, this allegation alone could not have enabled the LWDA to make an informed decision about whether to pursue investigation in this matter.
Plaintiffs argue that the letter contains sufficient "facts and theories" because it is at least as detailed as the letter upheld by the district court in Lessard v. Trinity Protection Servs., Inc., 2010 WL 3069265 (E.D. Cal. Aug. 3, 2010). A close reading of Lessard and the underlying PAGA notice, however, shows that it identified not only the alleged statutory violation, but facts and theories specific to the plaintiff's sole claim. In particular, the letter alleged that the employer violated Cal. Labor Code § 204, which in part requires employers to pay wages within seven days after a pay period, because it had a "policy and practice . . . to pay wages 12 days after the pay period ends." Id. at *1. Thus, Lessard is consistent with our view that an adequate notice must contain sufficient facts specific to the plaintiff's claims. Unlike the notice in Lessard, Ovieda's notice makes no attempt to describe any of Defendants' allegedly unlawful policies or practices.
The letter reads as follows in relevant part: "Through investigation, we have learned that your pay periods are 14 days long. That means you have 26 pay periods in each year. Accordingly, Labor Code § 204(d) requires you to issue wages seven days after the last day of each 14 day pay period. Your policy and practice is to pay wages 12 days after the pay period ends. Thus, your pay practice violates Labor Code § 204. That means, for each employee, you fail to make timely wage payments each pay period." (Dkt. No. 135, Ex. 1).
Relying on Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 267 (2009), Plaintiffs also contend that Ovieda's notice is adequate because the allegations therein should be construed with "utmost liberality." The "utmost liberality" standard in Nazir, however, applies to complaints to the EEOC and the California Department of Fair Employment and Housing. See id. It its well-settled that those administrative charges are reviewed liberally "because they are often drafted by claimants without the assistance of counsel." Id. Ovieda's notice was indisputably drafted by counsel, and thus, there is no basis to apply this liberal standard. Plaintiffs cite no authority, and we found none, that applies the "utmost liberality" standard to PAGA notices. See Archila, 420 Fed. Appx. at 699 (characterizing an authority on the standard for evaluating EEOC complaints as "inapposite" to evaluating PAGA notices).
Plaintiffs string cite, without further explanation, two other cases to support their contention that Ovieda's notice is sufficient: Cardenas v. McLane FoodServices, Inc., 796 F. Supp. 2d 1246 (C.D. Cal. 2011) and Moua v. Int'l Business Machines Corp., 2012 WL 370570 (N.D. Cal. Jan. 31, 2012). Cardenas, however, is not directly relevant because the defendant did not dispute that the plaintiffs set forth sufficient facts to support their claims of labor violations. Id. at 1260. Instead, the defendant argued only that the plaintiffs cannot represent aggrieved employees from northern California because the PAGA notice named only thirty-seven employees in the southern California area. Id. at 1259. The court held that the plaintiffs need not name all aggrieved employees to represent them, and that the letter need not include "every potential fact or every future theory." Id. at 1260. This conclusion is not inconsistent with our view that the requisite "facts and theories" must include some facts specific to the plaintiff's principal claims.
Indeed, it is not surprising that the defendant in Cardenas did not challenge the sufficiency of the allegations in support of the principal claims, as the notice alleged, inter alia, that the employer failed to pay all wages due because it "does not pay Plaintiffs for certain work performed before and after their driving shifts, including so-called safety inspections of their trucks." (Dkt. No. 135, Ex. 2).
In Moua, the court, without referencing the notice's content, concluded that the notice alleged sufficient "facts and theories" because "it name[d] specific 'aggrieved employees' and identifie[d] at least some alleged facts and theories." Id. at *5. In doing so, the court noted that it was a "close call." Id. A review of the notice shows that, while cursory, it alleged that the employer failed to "pay for the time it required [the plaintiff] to be on 'stand-by.'" (Dkt. No. 66, Ex. 1 in No. 5:10-CV-1070-EJD). This case-specific allegation at least tends to suggest that the employer failed to pay all wages and to provide off-duty meal and rest breaks by keeping the plaintiff and other similarly situated employees on "stand-by." In any event, we are not bound by Moua and do not find it persuasive inasmuch as it did not closely analyze this issue.
We independently take judicial notice of this PAGA notice as it is part of the public record of that court proceeding. --------
Having carefully reviewed the relevant authorities and various PAGA notices, we conclude that Ovieda's September 7, 2010 letter does not contain the requisite "facts and theories" and therefore fails to satisfy the exhaustion requirement. Because the letter does not sufficiently exhaust the claims alleged therein, we need not reach the question of whether the PAGA claim asserted in the SAC exceeds the scope of the notice.
C. Whether Ovieda Should Be Allowed to Submit an Amended Notice
Without citing any authorities, Plaintiffs request that in the event we find Ovieda's notice insufficient, we should give her the opportunity to send an amended notice to LWDA, "alleging all of the details alleged in Plaintiffs' SAC, particularly as the case law cited by Defendants was decided long after Ovieda served her PAGA letter in this matter." (Opp'n 7). This argument is unconvincing. First, in each of the cases where the court concluded that the plaintiff failed to adequately exhaust because the notice was factually insufficient, no court permitted the plaintiff to submit an amended notice, even when the notice dated as far back as 2006. See, e.g., Soto, 2012 WL 1292519, at *3. But more importantly, allowing an amended notice to be submitted after the civil action has already been filed defeats the very purpose of the exhaustion requirement, which is to give the LWDA the opportunity to make an informed decision about whether to pursue the matter itself. Consistent with this purpose, our independent research shows that the only circumstance under which a PAGA notice is allowed to be submitted after the initiation of an action is when the PAGA claim was not initially asserted. See, e.g., Lopez v. Lassen Dairy, Inc., 2008 WL 4657740 (E.D. Cal. Oct. 20, 2008); Harris v. Vector Marketing Corp., 2010 WL 56179 (N.D. Cal. Jan. 5, 2010). Such circumstance is not present here, as the initial complaint already asserted the PAGA claim.
Accordingly, Plaintiffs' request to submit an amended notice is DENIED.
IV. Conclusion
Based on the foregoing, Defendant's Motion for judgment on the pleadings as to the PAGA claim is GRANTED.
IT IS SO ORDERED.
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Initials of Deputy Clerk Bea