NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 18 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESUS CAZARES, individually and on No. 20-55803 behalf of other individuals similarly situated, D.C. No. Plaintiff-Appellant, 2:20-cv-04102-PA-KS

v.

MEMORANDUM*

HOST INTERNATIONAL, INC., a Delaware corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted July 9, 2021** Portland, Oregon

Before: O’SCANNLAIN, PAEZ, and BENNETT, Circuit Judges.

Plaintiff Jesus Cazares (“Cazares”) appeals the district court’s dismissal

under Fed. R. Civ. P. 12(b)(6) of his putative class action against Defendant Host

International, Inc. (“Host”), alleging violations of California’s Labor Code and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). unfair competition law. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Reviewing de novo, we affirm.1

1. Cazares alleges that he and putative class members are entitled to

compensation for time spent passing through airport security checks en route to

their workstation at the Admiral Club in a secured portion of Los Angeles

International Airport.

California’s wage orders require employers to pay employees for all “hours

worked,” defined as “the time during which an employee is subject to the control

of an employer, and includes all the time the employee is suffered or permitted to

work, whether or not required to do so.” Frlekin v. Apple Inc., 258 Cal. Rptr. 3d

392, 395 (Cal. 2020); Cal. Code. Regs. tit. 8, § 11050(2)(K). An employer

exercises control whenever it “directs, commands or restrains an employee.”

Frlekin, 258 Cal. Rptr. 3d at 399 (quoting Bono Enters., Inc. v. Bradshaw, 38 Cal.

Rptr. 2d 549, 553 (Ct. App. 1995)). “‘[T]he level of the employer’s control over its

employees, rather than the mere fact that the employer requires the employees’

activity, is determinative’ concerning whether an activity is compensable under the

‘hours worked’ control clause.” Id. at 406 (quoting Morillion v. Royal Packing Co.,

94 Cal. Rptr. 2d 3, 11 (Cal. 2000)).

1 Cazares’s and amicus curiae California Employment Law Council’s motions to take judicial notice, Dkt. Nos. 9, 23, 27, are granted.

2 The California Supreme Court has “emphasize[d] that whether an activity is

required remains probative in determining whether an employee is subject to the

employer’s control.” Id. It further explained: “[A]t least with regard to cases

involving onsite employer-controlled activities, the mandatory nature of an activity

is not the only factor to consider. . . . [C]ourts may and should consider additional

relevant factors — including, but not limited to, the location of the activity, the

degree of the employer’s control, whether the activity primarily benefits the

employee or employer, and whether the activity is enforced through disciplinary

measures — when evaluating such employer-controlled conduct.” Id.

We agree with the district court that Cazares’s first amended complaint fails

to state a viable claim for unpaid wages because it does not allege facts sufficient

to show he was subject to any level of control by Host during the security checks.

Cazares does not dispute that the airport security checks to which he and

putative class members are subject “are mandated by a federal law,” United States

v. Aukai, 497 F.3d 955, 960 n.3 (9th Cir. 2007) (en banc), and are administered by

a federal body, the Transportation Security Administration (“TSA”). 49 U.S.C. §

44901(b). Despite Cazares’s concession that the security check process is

mandated by federal law and administered by the TSA, Cazares’s first amended

complaint does not allege any facts showing that Host exercised any “level of

control” over him and putative class members during the security check process.

3 Frlekin, 258 Cal. Rptr. 3d at 401. The most that can be gleaned from the

allegations in the first amended complaint is that Cazares must pass through a TSA

security check en route to his worksite at the Admiral Club inside a secured portion

of Los Angeles International Airport. This allegation, however, provides none of

the factual predicates contemplated by the framework set out by the California

Supreme Court in Morillion and Frlekin to support an inference that Host, the

employer, had any “level of control” over Cazares during the TSA security check

process. This factor is “determinative” in assessing “whether an activity is

compensable under the ‘hours worked’ control clause.” Frlekin, 258 Cal. Rptr. 3d

at 406. Accordingly, Cazares is not entitled to compensable “hours worked” for

time spent during TSA security checks.2

2. Cazares alleges that Host violated his and putative class members’ rights to

meal breaks under Cal. Lab. Code § 512. He fails to allege facts sufficient to state

such a claim.

First, derivative of his unpaid wages claim, Cazares alleges that, because

time spent going through security should have been treated as “hours worked,” his

shifts started earlier than recorded by Host’s clock-in procedure, rendering his

meal breaks late. Because Cazares’s unpaid wages claim fails so too does this first

purported basis for a meal break violation.

2 We, therefore, decline to certify this issue to the Supreme Court of California.

4 Second, Cazares alleges that he was impermissibly subjected to on-premises

meal breaks because, due to the TSA security process, he did not have time to

leave the airport and return within thirty minutes. Cazares contends that Host

violated California law because the circumstances of his worksite location inside a

secured portion of the Los Angeles International Airport meant that he was not

“free to leave the premises” during his meal break, or, at least, he was “impede[d]

or discourage[d]” from doing so by Host. Brinker Rest. Corp. v. Sup. Ct., 139 Cal.

Rptr. 3d 315, 339, 343 (Cal. 2012).

Cazares’s argument fails because it assumes that the only way Host could

satisfy its obligation to permit him to “leave the premises” of the worksite during

his meal break would be to permit Cazares to leave the secured area of the airport.

The first amended complaint, however, fails to allege any factual basis for such an

assumption. Cazares is employed by Host and assigned to work at the Admiral

Club inside the secured area of Los Angeles International Airport. It is reasonable

to infer, then, that the Admiral Club is the “premises” from which Host must

permit him to leave. Cazares does not allege any facts suggesting that Host barred

or discouraged him from leaving his worksite at the Admiral Club during his meal

break. Cazares fails to allege any facts regarding Host’s conduct, policies,

statements, or actions relating to the location of Cazares’s meal breaks.

3. Cazares alleges Host violated his and putative class members’ right to rest

5 periods because “on many occasions” he “had to spend several minutes walking to

the designated rest area” that resulted in his break being “taken short.”

California’s wage orders require employers to “authorize and permit all

employees to take rest periods.” Cal. Code. Regs. tit. 8, § 11050(12). To meet this

requirement, employers “must relieve employees of all duties and relinquish

control over how employees spend their time.” Augustus v. ABM Security Services,

Inc., 211 Cal. Rptr. 3d 634, 644 (Cal. 2016).

Cazares does not allege that Host failed to “relieve [him] of all duties and

relinquish control over how [he] spen[t] [his] time” during his rest period. Id.

Cazares argues, instead, that Host violated California law by failing to provide him

with “ten . . . minutes net rest time per four . . . hours” worked, Cal. Code. Regs.

tit. 8, § 11050(12)(A), because Cazares “had to spend several minutes walking to

the designated rest area,” But this claim fails because Cazares does not allege any

facts supporting the necessary predicate condition that Host required him to take

his rest period at a particular designated area.

In fact, Cazares’s factual allegations concede that he was not required to

take his rest period at a designated rest area several minutes away by walking

because he caveats the allegation by noting that his break was cut short “on many

occasions.” If Cazares were required to take his rest period at a certain designated

area that was several minutes away, his rest period would always be cut short by

6 that walking time. Cazares fails to allege any facts about Host’s policies regarding

the location or duration of his rest break.

Thus, Cazares’s claim fails because he does not allege that (1) he was

required to take his rest period at a particular, remote designated area and (2) there

were no other areas where he or putative class members could take rest periods that

were closer than the designated area. Finally, Cazares does not point to any

authority supporting his assertion that Host was required and failed to provide him

with a designated rest area.

4. Cazares alleges (that, by failing to pay full wages for “hours worked” and

depriving him and putative class members of proper meal and rest breaks, Host

violated California law requiring accurate wage statements, incurred penalties for

forcing employees to wait to receive full wages owed after termination, and

violated California’s unfair competition law. These three claims are derivative of

and dependent on Cazares’s unpaid wages, meal break, and rest period claims.

Therefore, these claims fail just as the underlying claims do.

AFFIRMED.

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