Brum v. MarketSource, Inc.
2:17-cv-00241
E.D. Cal.Oct 27, 2017Background
- Plaintiffs Jennifer Brum and Michael Camero are former/new hires placed by MarketSource, Inc. (and Allegis Group) at Target kiosks in California; they allege unpaid overtime, missed meal/rest breaks, wage statement violations, and unpaid pre-employment drug-testing costs and travel.
- The Court previously granted in part and denied in part a motion to dismiss and struck drug-testing allegations with leave to amend; Plaintiffs filed a Second Amended Complaint (SAC) adding drug-testing reimbursement and new "paperwork" off-the-clock allegations.
- Defendants moved to strike the SAC allegations concerning compensation/reimbursement for required pre-employment drug testing and Plaintiffs’ new paperwork-based off-the-clock theory.
- Defendants sought judicial notice of a January 8, 2017 email describing drug-testing instructions; the Court declined to judicially notice it because authenticity was not properly established for decision on the motion to strike.
- The central legal question was whether individuals were "employees" (entitled to compensation/reimbursement) at the time of mandatory pre-employment drug testing and whether "costs" under Cal. Labor Code § 222.5 includes time, travel, or mileage.
- The Court struck the drug-testing and paperwork allegations in full, concluding Plaintiffs did not plausibly allege an employment relationship at the time of testing, § 222.5 does not encompass time/travel/mileage, and the paperwork allegations exceeded the scope of prior leave to amend; leave to further amend was denied as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether persons were employees at time of mandatory pre-employment drug testing | Plaintiffs: acceptance emails show they had accepted positions and were "engaged"/under defendant control when tested | Defendants: individuals were prospective hires, not employees, so no wage/reimbursement obligation | Court: Struck allegations — plaintiffs admitted testing was a condition of employment, so no employment formed pre-test; facts insufficient to show employer control creating employment relationship |
| Whether pre-employment "costs" under Cal. Lab. Code § 222.5 include compensation for time, travel, or mileage | Plaintiffs: § 222.5 should be read to include such costs; analogize to § 2802 reimbursement principles | Defendants: "cost" is narrower and does not include time, travel, or mileage | Court: Held § 222.5 does not cover time/travel/mileage; drug-testing allegations cannot support the UCL claim under that statute |
| Whether new "paperwork" off-the-clock allegations may be pleaded given prior leave to amend | Plaintiffs: prior leave to amend as to drug-testing permitted related off-the-clock allegations | Defendants: new paperwork theory exceeds the scope of leave | Court: Struck paperwork allegations as exceeding granted leave; not considered on merits |
| Judicial notice / incorporation of email instructing drug testing | Plaintiffs: contest authenticity; no proper foundation | Defendants: email central and produced in discovery | Court: Declined judicial notice — authenticity not established in motion papers; may not be considered over opposition |
Key Cases Cited
- Marder v. Lopez, 450 F.3d 445 (9th Cir. 2006) (doctrine of incorporation by reference for documents central to the complaint)
- Gunawan v. Howroyd-Wright Emp. Agency, 997 F. Supp. 2d 1058 (C.D. Cal. 2014) (analysis of when prospective workers/interviewees are employees based on control)
- Martinez v. Combs, 49 Cal.4th 35 (Cal. 2010) (definition of "employer" under California wage-and-hour law)
- In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609 (N.D. Cal. 2007) (motions to strike are disfavored and require that stricken matter have no possible bearing on litigation)
- Contreras v. Cnty. of Glenn, 725 F. Supp. 2d 1157 (E.D. Cal. 2010) (Rule 12(f) standard: strike only when matter could have no possible bearing)
- Vasquez v. Franklin Mgmt. Real Estate Fund, Inc., 222 Cal. App. 4th 819 (Cal. Ct. App. 2013) (reimbursement under § 2802 discussed in context of mileage/expenditures)