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Case 1:13-cv-01498-SAB Document 37 Filed 10/30/13 Page 1 of 13





UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA





BERNARDINA RODRIGUEZ,

Plaintiff,

v.

TACO BELL CORP.,

Defendant.

Case No. 1:13-cv-01498-SAB

ORDER DENYING DEFENDANT’S
MOTION TO DISMISS

ECF NO. 13







On July 9, 2013, Defendant Taco Bell Corp. (“Defendant”) filed a motion to dismiss in

this action. (ECF No. 13.) All parties in this action have consented to the jurisdiction of a

United States Magistrate Judge for all purposes. (ECF No. 27.)

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For the reasons set forth below, the Court deny Defendant’s motion to dismiss.

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I.

BACKGROUND

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Plaintiff Bernardina Rodriguez (“Plaintiff”) initially filed her complaint in the Superior

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Court of the State of California for the County of Solano. The action was removed from state

court to this Court on June 12, 2013. (ECF No. 1.) Plaintiff filed a First Amended Complaint on

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June 25, 2013. (ECF No. 12.)

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Plaintiff’s First Amended Complaint asserts a class action against Defendant for various

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violations of California’s Labor Code and Business and Professions Code. Plaintiff contends

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Case 1:13-cv-01498-SAB Document 37 Filed 10/30/13 Page 2 of 13

that Defendants failed to provide adequate meal periods, rest periods and wages. Plaintiff’s First



Amended Complaint proposes the following classes and subclasses:

Hourly Employee Class: All persons employed by Defendants in
hourly or non-exempt positions in California during the Relevant
Time Period.

Meal Break Class: All hourly employees of Defendants in
California who purchased a discounted food or beverage product at
Taco Bell, during the Relevant Time Period.

Rest Break Class: All hourly employees of Defendants in
California who worked a shift in excess of four (4) hours during
the Relevant Time Period.

Regular Rate Class: All Meal Break Class members who, in a
single pay-period, earned both (1): overtime or doubletime wages,
and (2) purchased any discounted food or beverage in the same pay
period during the Relevant Time Period.

Wage Statement Penalties Class: All Meal Break Class, and
Rest Break Class members employed by Defendants in California
during the period beginning one year before the filing of this action
and ending when final judgment is entered.

Waiting Time Penalties Class: All Hou[rl]y Employee Class,
Meal Break Class, Rest Break, and Regular Rate Class
members who separated from their employment with Defendants
during the period beginning three years before the filing of this
action and ending when final judgment is entered.

UCL Class: All Meal Break Class, Rest Break Class, Hourly
Class and Regular Rate Class members employed by Defendants
in California during the period of three years prior to the filing of
this action and ending when final judgment is entered.


(First Am. Compl. ¶ 11.) The Relevant Time Period is defined as the time period beginning four

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years prior to the filing of this action until judgment is entered. (First Am. Compl. ¶ 10.)

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Plaintiff’s claims largely arise from Defendant’s alleged policy of requiring employees to

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remain on the Taco Bell premises during meal and rest breaks if the employee purchases a

discounted meal or drink. (First Am. Compl. ¶ 1.) Plaintiff contends that because employees

were prohibited from leaving the premises, employees who bought discounted meals and drinks

during meal and rest breaks were deprived of a valid duty-free meal and/or rest period. Plaintiff

further alleges that, as a result of being deprived of valid meal and rest periods, employees were

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entitled to certain premium wages, which Defendant failed to pay.

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Defendant filed its motion to dismiss on July 9, 2013. (ECF No. 13.) Defendant argues



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that the issues in this case are substantially similar to those raised in an earlier class action

pending in this Court, In re Taco Bell, Case No. 1:07-cv-1314-SAB, and the overlapping claims

should be dismissed. Defendant also argues that certain claims fail to state a claim and are vague

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and ambiguous.

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The hearing on Defendant’s motion to dismiss took place on September 27, 2013. At the

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hearing, Defendant argued that Plaintiff lacked standing to bring a meal break claim on behalf of

the Meal Break Class because the complaint did not allege that Plaintiff had standing. On

October 11 and October 25, the parties submitted supplemental briefing on the issue of

Plaintiff’s standing as well as the issue of whether Plaintiff states a cognizable regular rate claim.

LEGAL STANDARDS PERTAINING TO MOTIONS TO DISMISS

II.

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Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on

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the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A

complaint must contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not

require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-

unlawfully harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In assessing the sufficiency of a

complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 678-

79. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. at 678.

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III.

DISCUSSION

A.

The First-To-File Rule

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Defendant argues that the Court should dismiss Plaintiff’s claims under the “first-to-file”

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rule because the claims asserted in this action are duplicative of the claims asserted in In re Taco

Bell, Case No. 1:07-cv-01314-SAB, which is also before this Court. The first-to-file rule “may

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be invoked ‘when a complaint involving the same parties and issues has already been filed in



another district.’” Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 625 (9th Cir. 1991)

(Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982)). “The first-to-file

rule was developed to ‘serve[] the purpose of promoting efficiency well and should not be

disregarded lightly.’” Id. (quoting Church of Scientology v. United States Dep’t of the Army,

611 F.2d 738, 750 (9th Cir. 1979)). A court’s decision to accept or decline jurisdiction based

upon the first-to-file rule is reviewed for abuse of discretion. Id.

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The parties do not discuss whether or not the first-to-file rule has any applicability where

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a complaint involving the same parties and issues has been filed in the same district or before the

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same judge in the same district. Other district courts have held that the first-to-file rule applies to

cases filed in the same district. See Wallerstein v. Dole Fresh Vegetables, Inc., No. 13-cv-

01284-YGR, 2013 WL 5271291, at *4 (N.D. Cal. Sept. 13, 2013). However, at least one district

court has held that the first-to-file rule has no applicability when the two actions at issue are

pending before the same judge in the same district. Henderson v. JPMorgan Chase Bank, No.

CV 11-3428 PSG (PLAx), 2011 WL 4056004, at *2 (C.D. Cal. Sept. 13, 2011). “In such

situations, the concerns justifying application of the rule-comity, efficiency, and uniformity—are

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nonexistent or greatly reduced.” Id.

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The Court follows the reasoning in Henderson and the cases cited therein. The concerns

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justifying the application of the first-to-file rule, particularly those relating to federal comity, do

not apply when both cases are pending before the same judge in the same court. Accordingly,

the Court denies Defendants’ motion to dismiss or stay this action pursuant to the first-to-file

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rule.

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B.

Claim Splitting

Defendant contends that Plaintiff’s claims should be dismissed because Plaintiff has

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engaged in improper claim splitting. “The doctrine of claim splitting bars a party from

subsequent litigation where the ‘same controversy’ exists.” Single Chip Systems Corp. v.

Intermec IP Corp., 495 F. Supp. 2d 1052, 1059 (S.D. Cal. 2007) (citing Nakash v. Superior

Court, 196 Cal. App. 3d 59, 68 (1987)). “A main purpose behind the rule preventing claim

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splitting is ‘to protect the defendant from being harassed by repetitive actions based on the same



claim.’” Clements v. Airport Authority of Washoe County, 69 F.3d 321, 328 (9th Cir. 1995)

(quoting Restatement (Second) Judgments, § 26, comment a (1982)). “Plaintiffs generally have

‘no right to maintain two separate actions involving the same subject matter at the same time in

the same court and against the same defendant.’” Adams v. California Dept. of Health Services,

487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 F.2d 66, 70-71 (3d Cir.

1977)). In determining whether a subsequent suit is duplicative of a prior suit, the Court

“borrow[s] from the test for claim preclusion.” Id. at 688-89. “[T]he true test of the sufficiency

of a plea of ‘other suit pending’ in another forum is the legal efficacy of the first suit, when

finally disposed of, as ‘the thing adjudged,’ regarding the matters at issue in the second suit.” Id.

(internal quotations and citations omitted). The Court’s decision to dismiss or stay an action

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under the claim-splitting doctrine is discretionary. Id. at 688.

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Some courts have held that the doctrine of claim splitting does not apply to class actions

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because class actions involve the representation of unnamed class members in abstentia. See

Gooch v. Life Investors Ins. Co. of America, 672 F.3d 402, 428 n.16 (6th Cir. 2012) (noting that

class action is an exception to the rule against claim splitting); Gunnells v. Healthplan Services,

Inc., 348 F.3d 417, 432 (4th Cir. 2003) (“a class action, ‘of course, is one of the recognized

exceptions to the rule against claim-splitting.’”); Valentine v. WideOpen West Finance, LLC,

288 F.R.D. 407, 415 (N.D. Ill. 2012); Makor Issues & Rights, Ltd. v. Tellabs, Inc., 256 F.R.D.

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586, 597 (N.D. Ill. 2009).

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Moreover, the claim splitting doctrine does not extinguish a subsequent claim when the

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plaintiff is unable to present the claim in the prior action, such as where there are limitations in

the subject matter jurisdiction of the court in the prior action or restrictions on their authority to

entertain multiple theories or demands for multiple remedies. See Valentine, 288 F.R.D. at 415.

Thus, the rule against claim splitting does not apply when a member of a class subsequently

seeks to pursue a claim that was not litigated in the class action. See Gooch, 672 F.3d at 428

n.16 (noting that class members in declaratory-relief only class are not precluded from pursuing

damages claims). In cases where a motion for class certification is denied, “the resulting

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judgment will not have claim-preclusive effect for persons who were not parties to the action



merely because of their potential membership in a class that hypothetically could have been

certified in the case.” 18 Lawrence B. Solum, Moore’s Federal Practice § 131.40 (2013); see

also Smith v. Bayer Corp., 131 S. Ct. 2368, 2380-82 (2011) (denial of class certification does not

bind would-be class members who are not named parties).

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Even if the claim splitting doctrine applied to class actions, the claims raised by Plaintiff

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here are not identical to the claims that survived the class certification process in In re Taco Bell.

The only claims that survived the certification process in In re Taco Bell were the claims for

missed meal periods on behalf of the certified Meal Break Subclass.1 The certified meal period

claim in In re Taco Bell is distinguishable from the meal period claim raised in this action. The

plaintiffs in In re Taco Bell alleged that Taco Bell implemented an illegal policy whereby

employees’ first meal period was given after the employees’ fifth hour of work. Thus, the

certified class consisted of persons who were entitled to a first meal break but worked more than

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five hours before receiving it.

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In contrast, the meal period claim raised by Plaintiff in this action concerns Plaintiff’s

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contention that the meal breaks provided by Taco Bell invalid. Plaintiff argues that Taco Bell

required employees who purchased discounted meals or drinks to remain on the premises.

Plaintiff further argues that requiring employees to remain on the premises does not constitute a

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valid, duty-free meal break.

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The Court recognizes that there is a possibility of overlap between the claims asserted in

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In re Taco Bell and the claims in this case. For example, a class member who was not given

their first meal break within the first five hours of their shift and who purchased a discounted

meal during that first meal break and was required to stay on the premises would fall under both

class actions. However, at this stage the possibility of overlap is only theoretical and the Court


1 The following class was certified in In re Taco Bell:

Meal Break Subclass:
All persons who work or worked as a non-exempt, hourly-paid employee at a corporate-owned
Taco Bell restaurant in California from September 7, 2003, until the resolution of this lawsuit who
worked for a period of time in excess of six hours and who worked for periods longer than five
hours without a meal period of not less than thirty minutes as reflected in Defendants’ employees’
time records.

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will not stay this action due to the mere possibility of overlapping class claims. If and when the



issue over overlapping claims arises in a more concrete manner, Defendant can raise the issue in

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an appropriate manner.

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The Court finds that the claims raised in this action are distinguishable from the claims

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that survived the certification process in In re Taco Bell. Accordingly, judgment in the In re

Taco Bell action would not preclude Plaintiff from challenging the adequacy of Taco Bell’s meal

break policy in this action. Accordingly, the Court will not dismiss Plaintiff’s claims under the

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claim splitting doctrine.

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C.

Sufficiency of Plaintiff’s “Regular Rate” Claim

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Defendant contends that Plaintiff’s “Regular Rate” claim must be dismissed because it

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fails to state a cognizable claim upon which relief may be granted. Plaintiff alleged that

Defendant incorrectly calculated overtime wage rates because the overtime rate failed to take

into account the meal and drink discounts provided by Defendant. In other words, Plaintiff

alleges that the “true” regular wage rate earned by Taco Bell employees consists of the hourly

rate paid plus the value of any meal and drink discounts received by the employee. Plaintiff

contends that California law requires overtime pay to be at least one and one-half times the

“true” regular wage rate and that Taco Bell did not calculate the proper rate of overtime pay

because the overtime rate was only based upon the hourly rate and did not account for the value

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of meal and drink discounts.

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The issue is whether the California Labor Code requires the calculation of overtime and

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regular rates to account for merchandise discounts provided by employers. The parties have not

cited any legal authority that addresses whether overtime rate calculations must take into account

employee discounts. The Court is unable to find any case authority from within this circuit

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addressing this issue.

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California law and federal law are generally consistent in terms of calculating the

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“regular rate” of pay and determining what forms of remuneration are included and excluded

from the calculation. See Advanced-Tech Sec. Services, Inc. v. Superior Court, 163 Cal. App.

4th 700, 707 (2008) (citing federal FLSA authority in interpreting parallel California Labor Code

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provisions); Huntington Memorial Hosp. v. Superior Court, 131 Cal. App. 4th 893, 902-903



(2005) (adopting standards under the federal Fair Labor Standards Act in determining how to

calculate regular rate of pay under California law).

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Looking to federal law, the Fair Labor Standards Act expressly excludes the following

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forms of remuneration from the calculation of the “regular rate” of pay:

(1)
sums paid as gifts; payments in the nature of gifts made at
Christmas time or on other special occasions, as a reward for
service, the amounts of which are not measured by or dependent on
hours worked, production, or efficiency;


29 U.S.C. § 207(e)(1). In one case out-of-circuit case from the Western District of Pennsylvania,

the court addressed the issue of employee discounts and the calculation of regular rates and

overtime rates. In Rau v. Darling’s Drug Store, Inc., 388 F. Supp. 877, 879 (W.D. Penn. 1975),

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the court found that:

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Other benefits provided by [the plaintiff’s] employer, such as food
and merchandise discounts, were in the nature of gifts and not
based upon the number of hours worked. These were not in the
nature of compensation such as would be included in the
determination of the ‘regular rate’, nor were they premiums to be
credited toward overtime compensation.


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Rau’s holding is consistent with the federal regulations interpreting 29 U.S.C. §

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207(e)(1):

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(b)
Gift or similar payment. To qualify for exclusion under
section 7(e)(1) the bonus must be actually a gift or in the nature of
a gift. If it is measured by hours worked, production, or efficiency,
the payment is geared to wages and hours during the bonus period
and is no longer to be considered as in the nature of a gift. If the
payment is so substantial that it can be assumed that employees
consider it a part of the wages for which they work, the bonus
cannot be considered to be in the nature of a gift. Obviously, if the
bonus is paid pursuant to contract (so that the employee has a legal
right to the payment and could bring suit to enforce it), it is not in
the nature of a gift.

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29 C.F.R. § 778.212(b).

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If Defendant’s discounted meal policy were available to all employees at any time

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without any restrictions based upon the number of hours worked, the policy may have qualified

as a “gift or similar payment” and may have been exempt from exclusion in an employee’s

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Regular Rate pursuant to 29 U.S.C. § 207(e)(1). However, Plaintiff’s complaint does not allege



facts that demonstrate that the discounted meal policy falls within the Section 207(e)(1)

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exception.

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The potential inapplicability of Section 207(e)(1) is highlighted by the extrinsic evidence

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submitted by Defendant.2 Defendant attempted to introduce evidence that Taco Bell’s meal

discount policy states that discounted meals are only provided before, during or after an

employee’s shift. Furthermore, an employee is not eligible for a meal discount unless their shift

is at least two hours long. Accordingly, Defendant’s evidence demonstrates that Taco Bell’s

meal break policy is potentially distinguishable from the merchandise discounts considered in

Rau and potentially does not qualify under the “gift or similar payment” exception under 29

U.S.C. § 207(e)(1) because the discount is “measured by or dependent on hours worked,

production, or efficiency.” Given the possibility that Defendant’s discounted meal policy does

not qualify as an exception under Section 207(e)(1), it would be inappropriate to dismiss

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Plaintiff’s Regular Rate claim at this stage in the litigation.

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Defendant also argues that Plaintiff miscalculates the value of the discounted meal for

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purposes of calculating the Regular Rate because the value should be calculated as the difference

between the cost of the meal to the employer and the discounted price paid by the employee.

Plaintiff contends that the value should be calculated as the difference between the non-

discounted price of the meal and the discounted price paid by the employee. The Court need not

address this issue, which would require the consideration of extrinsic evidence. This issue is

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more appropriately raised on a motion for summary judgment or at trial.

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Finally, Defendant argues that the value of a discounted meal cannot be included in an

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employee’s Regular Rate of pay because it would impermissibly incentivize patronage in

violation of California Labor Code Section 450. However, the Court is unaware of any canon of

statutory interpretation that compels the Court to interpret statutes in a manner such that

Defendant’s policies are legal.

2 Normally, the Court may not consider extrinsic evidence when ruling on a motion to dismiss. Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, the Court discusses the extrinsic evidence presented by
Defendant only to demonstrate why it would be premature to dismiss Plaintiff’s claims at this stage.

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At this stage, the Court cannot conclude that Plaintiff’s allegations fail to state a



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cognizable claim. Plaintiff alleged that the food discounts offered by Defendant should have

factored into his regular rate of pay and the Court must accept those allegations as true.

Accordingly, the Court will deny Defendant’s motion to dismiss Plaintiff’s “Regular Rate”

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claims.

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D.

Sufficiency of Plaintiff’s Labor Code § 204 Claim

Defendant argues that Plaintiff fails to state a cognizable claim under California Labor

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Code section 204 because it is derivative of her other claims for the failure to pay wages or

penalties. Section 204 governs the timely payment of wages and provides, in pertinent part:

(a)
All wages, other than those mentioned in Section 201,
201.3, 202, 204.1, or 204.2, earned by any person in any
employment are due and payable twice during each calendar
month, on days designated in advance by the employer as the
regular paydays. Labor performed between the 1st and 15th days,
inclusive, of any calendar month shall be paid for between the 16th
and the 26th day of the month during which the labor was
performed, and labor performed between the 16th and the last day,
inclusive, of any calendar month shall be paid for between the 1st
and 10th day of the following month.....


Plaintiff alleges violations of Section 204 in her first and second causes of action (failure to

provide meal periods and failure to provide rest periods). Plaintiff alleges that, as a result of the

failure to provide meal periods and failure to provide rest periods, Defendant is required to pay a

premium wage equal to one additional hour of pay at the employee’s regular rate of

compensation, as required under Labor Code section 226.7(b). Plaintiff further alleges that

Defendant never paid its employees this premium wage and, therefore, Defendant violated

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Section 204 by failing to timely pay all wages.

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The crux of Defendant’s argument is that Plaintiff’s section 204 claim is “derivative” of

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her claims for failing to provide meal and rest periods. Defendant contends that Section 204

only governs the timing of wages and not deficiencies in wages paid. In other words, Defendant

contends that Section 204 is violated only when an employer does not maintain semimonthly pay

periods as required under Section 204. Defendant argues that Section 204 is not violated if an

employer pays its employees on a semimonthly basis but fails to pay employees the correct

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amount for all hours worked, overtime, premium wages, etc.



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However, no authority has been provided stating that Section 204 should be interpreted in

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this manner. Moreover, the plain text of the statute is inconsistent with Defendant’s contention

that Section 204 is satisfied if an employer pays its employees some, but not all, of the wages

owed on a semimonthly basis. Section 204 plainly requires “[a]ll wages” to be paid on a

semimonthly basis. Moreover, Section 204 expressly provides for certain specific types of

wages that do not need to be paid on a semimonthly basis. If the legislature intended that

premium wages accrued as a result of missed meal and rest periods fall outside the scope of

Section 204, it would have included such wages in the list of exclusions. Further, the California

Supreme Court has expressly held that the additional hour of pay under Section 226.7 constitutes

“wages” within the meaning of Labor Code section 200(a) and the definition of wages under

Section 200(a) applies to Section 204, as both sections are found within the same article under

the Labor Code. Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1102, 1114

(2007). The California Supreme Court also held that such premium wages under Section 226.7

vest immediately upon being forced to miss a rest or meal period. Id. at 1107 (“In that way, a

payment owed pursuant to section 226.7 is akin to an employee’s immediate entitlement to

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payment of wages or for overtime.”).

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In light of the California Supreme Court’s characterization of Section 226.7 premium

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wages, the Court finds that Plaintiff states a cognizable claim under Labor Code section 204. An

employee is entitled to the additional hour of pay under Section 226.7 immediately upon being

forced to miss a rest or meal period. Section 204 requires such wages to be paid on a

semimonthly basis. Since Plaintiff alleges that Defendant failed to timely pay such wages,

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Plaintiff has alleged a cognizable claim under Section 204.

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E.

Compliance With Rule 8

Defendant argues that Plaintiff’s complaint should be dismissed because it does not meet

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the pleading standard required under Federal Rule of Civil Procedure 8. Defendant contends that

Plaintiff merely asserts legal conclusions and does not allege even rudimentary facts such as the

dates of her employment, her position, the location where she worked, and what acts or

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omissions support her legal conclusions. However, Defendant does not demonstrate how these



“rudimentary facts” are legally relevant. Defendant does not contend that the dates of

employment, position, location, or other acts affect the cognizability of her claims or impair

Defendant’s ability to defend against Plaintiff’s claims.

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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claim showing that the pleading is entitled to relief,’ in order to ‘give the defendant fair notice of

what the ... claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1956)). The Court finds that

Plaintiff’s allegations are sufficient to support plausible claims. Plaintiff alleged that she worked

for Defendant as an hourly employee during the relevant time period, which is defined as the

period beginning for years prior to the filing of this action until the date judgment is entered.

Plaintiff further alleges that Defendant had a policy requiring employees to remain on the

premises during meal and rest periods when the employee purchases a discounted meal or drink.

As a result of this policy, Defendants did not provide employees with valid meal and rest

periods, which in turn resulted in further wage and wage statement violations. The Court finds

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that these allegations are sufficient to put Defendant on notice of Plaintiff’s claims.

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F.

Plaintiff’s Standing and Typicality

At the hearing on Defendant’s motion to dismiss and in supplemental briefing provided

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after the hearing, Defendant raised the issue of Plaintiff’s standing to bring her Meal Break and

Regular Rate claims on behalf of the proposed classes. Defendant also raised the issue of

typicality for the first time in the supplemental brief filed after the hearing. The Court generally

refuses to consider new arguments raised for the first time in a reply brief. See, e.g., State of

Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990). Accordingly, Defendant’s arguments

raised for the first time after the reply briefing period are untimely. Moreover, having reviewed

Plaintiff’s pleadings, the Court is satisfied that Plaintiff’s complaint sufficiently alleges that

Plaintiff has standing and suffered injury typical of the other class members. Plaintiff alleged

that she was “denied uninterrupted, duty-free meal periods” and that Defendants failed to pay

Plaintiff and other Meal Break Class members the appropriate wages for overtime hours worked.

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(First Am. Compl. ¶¶ 29, 58, 85.) These allegations are sufficient to demonstrate that Plaintiff



suffered injuries typical to those of other class members.

IV.

CONCLUSION AND ORDER

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Based upon the foregoing, it is HEREBY ORDERED that:

Defendant’s motion to dismiss is DENIED; and

Defendant shall file a responsive pleading within fourteen (14) days of the date of

service of this order.

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IT IS SO ORDERED.

Dated: October 30, 2013




_
UNITED STATES MAGISTRATE JUDGE

_



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