TORREY EASON, an individual, v. THE ROMAN CATHOLIC BISHOP OF SAN DIEGO, a corporation sole, CATHOLIC SECONDARY EDUCATION – DIOCESE OF SAN DIEGO, INCORPORATED, a nonprofit public benefit corporation
Case No.: 19-cv-577-WQH-BLM
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 7, 2019
HAYES, Judge
HAYES, Judge:
The matter before the Court is the Amended Motion to Dismiss the Third Through Sixth and Eighth Causes of Action and the Claim for Punitive Damages as Pled in Plaintiff‘s First Amended Complaint Pursuant to
I. BACKGROUND
A. Procedural History
On March 29, 2019, Plaintiff Torrey Eason initiated this action by filing a Complaint. (ECF No. 1). Plaintiff filed a First Amended Complaint (“FAC“) on May 22, 2019. (ECF No. 5). Plaintiff alleges claims in the FAC against Defendants for 1) adverse employment action in violation of public policy; 2) violation of sections 1101 and 1102 of the
On June 6, 2019, Defendants filed a motion to dismiss Plaintiff‘s third, fourth, fifth, sixth, and eighth causes of action and Plaintiff‘s claim for punitive damages. (ECF No. 9). Defendants contend that Plaintiff fails to state a claim upon which relief can be granted, because 1) Plaintiff was an exempt employee who is not entitled to the
On June 25, 2019, Plaintiff filed a response to Defendants’ motion to dismiss. (ECF No. 10). Plaintiff contends that 1) Defendants fail to show the affirmative defense of exemption applies; 2) Plaintiff has requested recoverable relief under
Plaintiff alleges that Defendants jointly operate Cathedral Catholic High School (“CCHS“), which employed Plaintiff as a college counselor beginning December 2016. (ECF No. 5 ¶¶ 4, 10-11). In April 2017, Plaintiff‘s supervisor, Ashley Bascom, asked if any of the counselors would volunteer as moderator for the new CCHS Gay Straight Alliance (the “PLUS Club“). Id. ¶¶ 12-13. Plaintiff agreed to be the moderator and revealed to Bascom and the other counselors that he is gay. Id. ¶ 13.
Plaintiff alleges that, after he identified himself as gay in front of his supervisor, through March 2018, he was disciplined by CCHS for various actions including attending a local LGBT fundraiser, openly declaring his sexual orientation, and participating in political activity in support of the LGBT community. Id. ¶¶ 27, 31. Plaintiff alleges CCHS‘s disciplinary reports were pretextual and made to look like he was being disciplined for “work-related reasons.” Id. at 31.
On March 28, 2018, the principal of CCHS, Kevin Calkins, told Plaintiff his employment contract would not be renewed. Id. ¶ 32, Calkins allegedly told Plaintiff that he could continue working at CCHS until August 3, 2018, but that Plaintiff was not allowed to discuss the non-renewal of his contract with any parents or students. Id. ¶ 34. After Plaintiff discussed the non-renewal of his contract with “several parents and students,” Calkins told Plaintiff on April 26, 2019, that he would no longer be allowed at CCHS. Id. ¶ 36.
Plaintiff alleges that, during his employment at CCHS, he worked overtime hours without compensation. Id. ¶ 58. Plaintiff identifies 16 pay periods from August 2017 through April 2018 where he alleges he worked overtime hours without pay. Id. ¶ 60. Plaintiff alleges that CCHS failed to maintain records of Plaintiff‘s overtime hours, but he estimates that he worked a total of 174 overtime hours. Id. ¶¶ 59-60. Plaintiff alleges that CCHS required him to work shifts of five or more hours without providing him a 30-minute meal period. Id. ¶¶ 68, 70. Plaintiff alleges that although CCHS failed to maintain records of Plaintiff‘s meal periods, he estimates he missed 10 meal periods during his employment. Id. ¶ 70.
II. LEGAL STANDARD
“In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation omitted). If both parties advance plausible alternative explanations, then the “plaintiff‘s complaint survives a motion to dismiss under Rule 12(b)(6),” because “[t]he standard at this stage of the litigation is not that plaintiff‘s explanation must be true or even probable.” Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011) (“Plaintiff‘s complaint may be dismissed only when defendant‘s plausible alternative explanation is so convincing that plaintiff‘s explanation is im plausible.“).
III. DISCUSSION
A. Causes of Action 3, 4, and 6 – Wage and Hour Claims
Defendants contend that Plaintiff was an exempt employee, so Defendants were not required to comply with the overtime, meal period, and wage statement laws. (ECF No. 9-1 at 10). Defendants acknowledge that exemption is an affirmative defense. Defendants assert, however, that Plaintiff has the burden to include factual allegations in the FAC “regarding [his] classification,” including the nature of his employment, salary, and job duties. Id. at 10-11.
Plaintiff contends that Defendants have the burden to plead and prove Plaintiff was an exempt employee, because exemption is an affirmative defense. (ECF No. 10 at 9). Plaintiff further contends that Defendants’ affirmative defense is improper, because Defendants fail to establish the defense based only on the uncontested facts in the FAC. Id. at 10-11.
“Dismissal under
Whether an employee is exempt from overtime, meal and rest period, and certain wage statement requirements is an affirmative defense under California labor law and the FLSA. See Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 794-95 (1999); Corning Glass Works v. Brennan, 417 U.S. 188, 197 (1974) (“[T]he application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof.“). Exemptions are narrowly construed against the employer. Haro v. City of L.A., 745 F.3d 1249, 1256 (9th Cir. 2014); Nordquist v. McGraw-Hill Broad. Co., 38 Cal. Rptr. 2d 221, 226 (Ct. App. 1995). Exemptions “will not be found except [in contexts] plainly and unmistakably within [the given exemption‘s] terms and spirit.” Haro, 745 F.3d at 1256 (quotation omitted)
Defendants do not show that the facts alleged in the FAC establish that an exemption applies to Plaintiff. Defendants cite to the California Code of Regulations’ exemption for “administrative” employees. (ECF No. 9-1 at 10 (citing
Defendants’ motion to dismiss the third, fourth, and sixth causes of action is denied.
B. Fifth Cause of Action – Waiting Time Penalties
Defendants contend the Court should dismiss Plaintiff‘s fifth cause of action for waiting time penalties, because it is entirely derivative of the defective wage and hour claims. (ECF No. 9-1 at 11). Defendants do not establish that Plaintiff was an exempt employee. Defendants’ motion to dismiss the fifth cause of action is denied.
C. Eighth Cause of Action – Unfair Competition
California‘s Unfair Competition Law,
1. Injunctive Relief
Defendants contend Plaintiff has no standing to seek injunctive relief under the UCL. Defendants assert that because Plaintiff is no longer employed at CCHS, there is no threat of continuing harm. (ECF No. 9-1 at 12-13). Plaintiff responds that he “does not seek injunctive relief under the UCL.” (ECF No. 10 at 11). Plaintiff contends that he requests injunctive relief “pursuant to
To the extent Plaintiff requests injunctive relief under the UCL in the FAC, Plaintiff has clarified the request is withdrawn. Id. Defendants’ motion to dismiss Plaintiff‘s UCL claim based on Plaintiff‘s request for injunctive relief is denied.
2. Adequate Legal Remedy
Defendants contend that Plaintiff cannot recover on his UCL claim, because Plaintiff
In general, a plaintiff may only seek equitable relief under the UCL if he has no adequate legal remedy at law. Moss v. Infinity Ins. Co., 197 F. Supp. 3d 1191, 1203 (N.D. Cal. 2016); Prudential Home Mortg. Co. v. Sup. Ct., 78 Cal. Rptr. 2d 566, 573 (Ct. App. 1998). However, there is an “intra-circuit split” on the issue of whether it is appropriate to dismiss UCL claims at the pleading stage when they are based on identical facts as other claims providing the legal remedy of damages. Wildin v. FCA US LLC, 3:17cv-02594-GPC-MDD, 2018 U.S. Dist. LEXIS 102583, at *19, *21 (S.D. Cal. Jun. 19, 2018). Several district courts have dismissed UCL claims that are based on the same facts as other claims seeking legal remedies. Id. at *20; see, e.g., Philips v. Ford Motor Co., No. 14-CV-02989, 2015 U.S. Dist. LEXIS 88937, at *53 (N.D. Cal. Jul. 7, 2015) (dismissing UCL claim where plaintiff did not allege his claim for fraudulent concealment failed to provide an adequate remedy at law); Durkee v. Ford Motor Co., No. C 14-0617 PJH, 2014 U.S. Dist. LEXIS 122857, at *6 (N.D. Cal. Sep. 2, 2014) (“Because the UCL provides for only equitable remedies, and plaintiffs have an adequate remedy at law for the alleged Song-Beverly Act violation, plaintiff‘s UCL claim must be dismissed.“); Rhynes v. Stryker Corp., No. 10-5619 SC, 2011 U.S. Dist. LEXIS 58268, at *3-*4 (N.D. Cal. May 31, 2011) (dismissing UCL claim because “money damages will provide Plaintiffs with an adequate legal remedy if they prevail on their products liability claims“).
Other courts in this circuit have “declined to follow this practice . . . primarily on the ground that no controlling authority prohibits a federal court plaintiff from pleading alternative remedies.” Wildin, 2018 U.S. Dist. LEXIS 102583, at *21; see id. at *22 (holding that “dismissal of the Wildins’ claims at this stage is premature, as there is no procedural bar to a federal court plaintiff pleading alternative remedies“); see also Deras v. Volkswagen Grp. of Am., Inc., No. 17-cv-05452-JST, 2018 U.S. Dist. LEXIS 83553, at *18-*19 (N.D. Cal. May 17, 2018) (finding plaintiff could pursue alternative equitable remedies under the UCL at the pleading stage); Adkins v. Comcast Corp., at *7 (“[T]his Court is aware of no basis in California or federal law for prohibiting the plaintiffs from pursuing their equitable claims in the alternative to legal remedies at the pleading stage.“).
This Court agrees with the decisions allowing plaintiffs to plead a UCL claim as an alternative legal remedy. No controlling authority prevents a plaintiff from pleading alternative legal remedies. In addition, “[d]iscovery may reveal that [the plaintiff‘s] claims providing legal remedies are inadequate for any number of reasons, despite the fact that their allegations appear adequate.” Wildin, 2018 U.S. Dist. LEXIS 102583, at *21. Defendants’ motion to dismiss Plaintiff‘s UCL claim for failure to show Plaintiff lacks an adequate remedy at law is denied.
Defendants contend that Plaintiff cannot recover for waiting time penalties under the UCL. Defendants contend that the remedy provided by the waiting time provision,
If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced . . . .
The California Supreme Court has made clear that a plaintiff cannot recover under the UCL for a violation of
Defendants further contend that Plaintiff cannot recover restitution for meal period violations under the UCL. (ECF No. 9-1 at 14). Plaintiff contends that “the meal period premium is a wage, and is therefore recoverable as restitution under the UCL.” (ECF No. 10 at 13).
There is “no controlling precedent from the California Supreme Court” on the issue of whether meal period premiums are recoverable under the UCL. Calleros v. Rural Metro of San Diego, Inc., No. 17-cv-00686 CAB-BLM, 2017 U.S. Dist LEXIS 120119, at *1 (S.D. Cal. Jul. 31, 2017). The relevant California Supreme Court decisions related to this issue are Murphy v. Kenneth Cole Products, Inc., 155 P.3d 284 (Cal. 2007), and Kirby v. Immoos Fire Protection, Inc., 274 P.3d 1160 (Cal. 2012).
In Murphy, the court examined whether recovery for meal and rest period violations is a “wage” or a “penalty.” The court held that recovery “is a premium wage intended to compensate employees, not a penalty.” Murphy, 155 P.3d at 297. The meal and rest period statute,
The court explained that penalties in the
In Kirby, the California Supreme Court considered whether
An employer‘s failure to provide an additional hour of pay does not form part of a
section 226.7 violation, and an employer‘s provision of an additional hour of pay does not excuse asection 226.7 violation . . . . Accordingly, asection 226.7 claim is not an action brought for the nonpayment of wages; it is an action brought for the nonprovision of meal or rest breaks.
District courts in this circuit have reached different conclusions regarding whether a plaintiff can recover under the UCL for a violation of
In Calleros, the court held that a plaintiff can recover
This Court finds the reasoning in Calleros persuasive. Wages awarded for meal period violations are recoverable as restitution under the UCL. Wages recovered under
D. Punitive Damages
Defendants contend that the Court should dismiss Plaintiff‘s claim for punitive damages against CSE, because Plaintiff
No claim for punitive or exemplary damages against a religious corporation or religious corporation sole shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive or exemplary damages to be filed. The court may allow the filing of an amended pleading claiming punitive or exemplary damages on a motion by the party seeking the amended pleading and upon a finding, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established evidence which substantiates that plaintiff will meet the clear and convincing standard of proof. . . .
Regardless of whether CSE qualifies as a “religious corporation” under the statute,
There is no controlling authority regarding
Of those seven cases, only one applied
The courts in Naranjo and Schinde determined that
IV. CONCLUSION
IT IS HEREBY ORDERED that Defendants’ Amended Motion to Dismiss the Third Through Sixth and Eighth Causes of Action and the Claim for Punitive Damages as Pled in Plaintiff‘s First Amended Complaint Pursuant to
Dated: October 7, 2019
Hon. William Q. Hayes
United States District Court