Gomez v. Elite Labor Services Weeklys, Ltd.

Background

Fernando Gomez alleged that he was nominally employed by Elite as a non-exempt hourly employee from approximately December 6, 2018, through February 29, 2019. He alleged that Southland Employment Services, Inc. handled his employment interactions and that he was assigned to work for PrimeSource, first as a dock worker and later as a forklift operator.

Gomez asserted ten causes of action under the California Labor Code and related California law, plus a representative claim under the Private Attorneys General Act (PAGA). He alleged, among other things, that he was not paid all minimum and overtime wages, did not receive required meal and rest periods, was not paid vacation or sick pay, was not reimbursed for required work shoes, did not receive accurate wage statements, was not timely paid all final wages, and was charged fees when using a payment card.

The defendants, Elite Labor Services Weeklys, Ltd. and Elite Staffing, Inc., moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. They also moved under Rule 12(f) to strike Gomez’s class allegations.

Rulings on the Claims

The court accepted Gomez’s allegation that Elite Labor Services Weeklys, Ltd. did business as Elite Staffing, Inc. for purposes of the motion. Based on that allegation, the court dismissed as superfluous all claims against Elite Staffing, Inc., leaving Elite Labor Services Weeklys, Ltd. as the sole defendant for the claims addressed on the merits of the pleading.

The court dismissed the First Cause of Action for failure to provide meal periods. Gomez alleged that PrimeSource’s productivity requirements caused him to work through meal periods and that he was unaware of any action by Elite or Southland to ensure compliance. The court found that his lack of awareness did not allege that Elite actually took no action. The court also held that Gomez alleged only that he was not given a written policy, not that Elite lacked a meal-period policy, and explained that the cited law does not require a formal written policy.

The court dismissed the Second Cause of Action for failure to provide rest periods for substantially the same reasons. The court found that Gomez’s allegations about PrimeSource’s work pressures and the absence of written policies did not adequately state a claim against Elite.

The court dismissed the Third Cause of Action for hourly and overtime wages. As to minimum wages, Gomez did not rely on his allegations about off-the-clock work in opposing dismissal and instead argued that missed meal periods entitled him to minimum wages. The court held that meal-period premiums are not unpaid minimum wages under the cited California statute. As to overtime, the court found that the complaint provided only a conclusory assertion and did not identify a workweek in which Gomez worked more than 40 hours without receiving overtime pay.

The court dismissed the Fourth Cause of Action for vacation wages because Gomez did not allege facts showing that he had accrued vacation wages when his employment ended or describing the allegedly unlawful vacation policies.

The court dismissed the Fifth Cause of Action for sick pay. Gomez alleged that he missed work for permissible reasons and was not paid for those days, but the court noted that he alleged he worked for less than 90 days and did not allege that he had accrued sick days available for use. The discussion states that this deficiency could not be cured, but the final paragraph’s amendment language appears to include the Fifth Cause of Action among claims that could be amended. The provided text is therefore inconsistent on whether further amendment of this claim was allowed.

The court addressed the Sixth Cause of Action for reimbursement of steel-toed boots. Gomez alleged that PrimeSource required the purchase and that Elite enforced the requirement through Southland. The court found that he did not plead facts showing that Southland acted as Elite’s agent, including facts showing Elite had the right to control Southland. The discussion indicates that this pleading deficiency might be curable. However, the conclusion as provided states that the Sixth Cause of Action was dismissed and the text immediately following that statement includes a dismissal without prejudice to alleging the claim in state court, without clearly showing which claim that qualifier modifies. The exact final disposition and amendment permission for the Sixth Cause of Action are unclear from the provided excerpt.

The court did not dismiss the Seventh Cause of Action, which alleged that Elite failed to provide accurate wage statements. The defendants challenged only Gomez’s basis for alleging that other employees lacked wage statements, not the sufficiency of Gomez’s own individual claim.

The court dismissed the Eighth Cause of Action for untimely payment of final wages because that claim depended on the wage claims the court had dismissed.

The court dismissed the Ninth Cause of Action concerning fees charged when Gomez used payment cards. The court explained that California law requires an opportunity to use the wage instrument without a discount at some established place of business in the state, not at every business, and Gomez did not allege that Elite denied him all such opportunities.

The court dismissed the Tenth Cause of Action for unfair competition. Gomez agreed that this claim was subject to dismissal because he had not shown that he lacked an adequate legal remedy in federal court. The court specified that the claim was dismissed without prejudice to Gomez’s refiling it in state court.

The court dismissed the Eleventh Cause of Action, Gomez’s PAGA claim. The court held that the PAGA claim could not proceed based on the dismissed Labor Code claims. Although the individual wage-statement claim under Labor Code section 226(a) was sufficiently pleaded, Gomez did not allege facts showing that any employee other than himself lacked wage statements. The court therefore found the representative PAGA claim inadequately pleaded.

Class Allegations and Leave to Amend

Because the First through Sixth and Eighth through Tenth causes of action were dismissed, the court denied as moot the defendants’ request to strike the class allegations supporting those claims. For the Seventh Cause of Action, the court granted the request to strike the class allegations because Gomez did not allege facts showing a common legal or factual issue with other employees or that his claim was typical of theirs.

The court stated that Gomez would receive another opportunity to amend claims whose pleading deficiencies might be cured with additional facts, except for the Fifth Cause of Action and the Tenth Cause of Action. The conclusion’s later instruction concerning which claims could be amended appears to conflict with that statement and also appears to omit the Sixth Cause of Action. The final order therefore clearly establishes that the motion was granted in part and denied in part, but the provided text does not resolve every inconsistency concerning amendment of individual claims.

Disposition

Judge Maxine Chesney ordered that the motion was granted in part and denied in part. The motion was granted as to dismissal of all claims against Elite Staffing, Inc.; granted as to the First through Sixth and Eighth through Eleventh Causes of Action, subject to the qualifiers and inconsistencies described above; granted as to the Seventh Cause of Action’s class allegations; and denied as to dismissal of the Seventh Cause of Action. The request to strike class allegations supporting the dismissed claims was otherwise denied as moot. The order allowed Gomez 21 days from the date of the order to file a Fifth Amended Complaint, subject to the apparent inconsistencies in the text about which claims could be amended.