Case 2:21-cv-03051-ODW-KES Document 25 Filed 01/21/22 Page 1 of 7 Page ID #:250

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8 United States District Court 9 Central District of California

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11 VICTOR PIMENTEL, as an individual Case № 2:21-cv-03051 ODW (KESx) and on behalf of others similarly situated, 12

Plaintiff, 13 ORDER GRANTING v. DEFENDANTS’ MOTION TO 14

DISMISS [19]

HOME DEPOT, U.S.A., INC., a Delaware 15 corporation, and DOES 1-50, inclusive,

16 Defendants. 17 18 19 I. INTRODUCTION 20 Plaintiff Victor Pimentel brings this representative class action against 21 Defendant Home Depot U.S.A., Inc., for various labor law violations. (Second Am. 22 Compl. (“SAC”) ¶ 2, ECF No. 15.) Home Depot moves to dismiss Pimentel’s third 23 and sixth causes of action pursuant to Federal Rule of Civil Procedure (“Rule”) 24 12(b)(6). (Mot. Dismiss (“Mot.” or “Motion”), ECF No. 19.) The matter is fully 25 briefed. (Opp’n, ECF No. 21; Reply, ECF No. 22.) For the reasons discussed below, 26 the Court GRANTS Home Depot’s Motion.1 27

28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:21-cv-03051-ODW-KES Document 25 Filed 01/21/22 Page 2 of 7 Page ID #:251

1 II. BACKGROUND 2 For purposes of this Rule 12(b)(6) Motion, the Court takes all of Pimentel’s 3 well-pleaded allegations as true. See Lee v. City of Los Angeles, 250 F.3d 668, 688 4 (9th Cir. 2001). 5 Pimentel worked for Home Depot as a non-exempt employee, and his duties 6 including stocking, selling, and providing customer service. (SAC ¶ 13.) Home 7 Depot required Pimentel and other employees to report seven minutes prior to their 8 shift for an inspection. (Id. at ¶ 42.) The inspections lasted an average of five to 9 ten minutes, and employees were only compensated for four of those minutes and 10 were precluded from logging additional time. (Id.) As a result, Pimentel’s wage 11 statements lacked an accurate indication of the total number of hours he worked. (Id. 12 at ¶¶ 42–43.) 13 On May 28, 2021, Pimentel filed the operative SAC, alleging seven causes of 14 action against Home Depot: (1) failure to pay overtime; (2) failure to pay wages, 15 including minimum wages; (3) failure to provide and maintain accurate wage 16 statements; (4) failure to pay for necessary expenses; (5) failure to pay timely wages 17 upon termination; (6) unlawful business practices; and (7) violation of the California 18 Labor Code Private Attorneys General Act (“PAGA”). (See generally SAC.) 19 Home Depot now moves to dismiss Pimentel’s third cause of action for Home 20 Depot’s failure to include all compensable hours worked on employee wage 21 statements in violation of California Labor Code section 226. (Mot. 5–10; SAC 22 ¶¶ 39–43.) Home Depot argues that in asserting this cause of action, Pimentel seeks 23 an impermissible double recovery and fails to allege a requisite injury. (Mot. 5–10.) 24 Home Depot also argues that Pimentel’s seventh cause of action—the PAGA claim— 25 should be dismissed to the extent it seeks penalties based on the violations alleged in 26 the third cause of action. (Id. at 11–12.) Finally, Home Depot moves to dismiss 27 Pimentel’s sixth cause of action for failure to plead sufficient facts. (Id. at 10–11.) As 28 discussed below, the Court grants Home Depot’s Motion because California law does

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1 not recognize the type of wage statement error Pimentel alleges as a violation of Labor 2 Code section 226. 3 III. LEGAL STANDARD 4 Rule 12(b)(6) provides that a complaint may be dismissed for lack of a 5 cognizable legal theory or insufficient facts pleaded to support an otherwise 6 cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 7 (9th Cir. 1988). A complaint need only satisfy the minimal notice pleading 8 requirements of Rule 8(a)(2)—a short and plain statement of the claim—to survive 9 such dismissal. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Nevertheless, 10 factual “allegations must be enough to raise a right to relief above the speculative 11 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, the complaint 12 must “contain sufficient factual matter, accepted as true, to state a claim to relief that 13 is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 14 quotation marks omitted). Testing the plausibility standard is a “context-specific task 15 that requires the reviewing court to draw on its judicial experience and common 16 sense.” Id. at 679. In analyzing a motion to dismiss, courts are generally limited to 17 the pleadings and must construe all “factual allegations set forth in the complaint . . . 18 as true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 19 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 20 conclusory allegations, unwarranted deductions of fact, or unreasonable inferences. 21 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 22 When a district court grants a motion to dismiss, it should generally provide 23 leave to amend unless it is clear the complaint could not be saved by any amendment. 24 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 25 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 26 determines that the allegation of other facts consistent with the challenged pleading 27 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 28 Co., 806 F.2d 1393, 1401 (9th Cir. 1986); Carrico v. City & County of San Francisco,

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1 656 F.3d 1002, 1008 (9th Cir. 2011) (“It is properly denied . . . if amendment would 2 be futile.”). 3 IV. DISCUSSION 4 The Court begins with Pimentel’s sixth cause of action for violation of 5 California’s Unfair Competition Law (“UCL”). (Mot. 10.) Home Deport asserts that 6 Pimentel must establish an inadequate remedy at law before securing an equitable 7 remedy under the UCL and that because Pimentel failed to establish an inadequate 8 remedy at law, the cause of action should be dismissed. (Id.) In his opposition to the 9 Motion, Plaintiff states that it “does not dispute the motion as the Sixth Cause of 10 Action, leaving the Third Cause of Action as the subject of this motion.” (Opp’n 1.) 11 Thus, the Court GRANTS Home Depot’s Motion to dismiss the sixth cause of action. 12 Turning to Pimentel’s third cause of action, California Labor Code section 13 226(a) lists nine categories of information that employers must include on employee 14 wage statements, including, in relevant part, “ (1) gross wages earned, (2) total hours 15 worked by the employee . . . [and] (5) net wages earned.” Cal. Lab. Code § 226(a). 16 Penalties for violating section 226 are available to employees who suffer “injury as a 17 result of a knowing and intentional failure by an employer” to include the required 18 information. Id. § 226(e)(1). 19 Pimentel alleges Home Depot violated section 226 by providing wage 20 statements that failed to include the total hours worked. (SAC ¶ 41); see Cal. Lab. 21 Code § 226(a)(2). Pimentel alleges Home Depot prevented employees from logging 22 their pre-shift inspection time and as a result of omitting that time “fail[ed] to provide 23 wage statements that included each employee’s applicable total compensable hours 24 worked.” (SAC ¶¶ 41–43.) Home Depot argues that Pimentel’s third cause of action 25 must be dismissed as an impermissible attempt at a double recovery. (Mot. 5.) 26 Pimentel’s section 226 cause of action is derivative of Pimentel’s second cause 27 of action, which seeks to recover wages for time spent performing pre-shift 28 inspections. (See SAC ¶¶ 33–38.) Pimentel is alleging that, because Home Depot

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1 failed to allow him to log his pre-shift inspection hours, his wage statement fails to 2 include the “total hours worked by the employee” as required by section 226(a)(2). 3 However, this is not the kind of omission that constitutes a wage statement violation. 4 This is not a case where, for example, employees are alleging that they logged their 5 pre-shift inspection hours, but the employer later omitted those logged hours from the 6 wage statement, rendering the “hours worked” total on the wage statement inaccurate. 7 Here, Pimentel never logged his pre-shift inspection hours, and his wage statements 8 correspondingly never included pre-shift inspection hours. This case presents neither 9 of the concerns the California Legislature had in mind when enacting section 226, 10 which include (1) keeping employees “adequately informed of compensation 11 received,” and (2) preventing employees from being “shortchanged by their 12 employers.” Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308, 1337 13 (2018). 14 In Maldonado, the California Court of Appeal concluded that in a situation 15 “where at the time the work was performed, the work was done and paid for at a 16 particular rate, but it was subsequently determined that the employee had actually 17 earned the right to additional compensation,” the absence of an accurate indication of 18 the wages earned “will be remedied by the violated wage and hour law itself.” 22 Cal. 19 App. 5th at 1336–37. The same reasoning applies here. At or around the time he 20 performed his work, Pimentel logged his hours, omitting pre-shift inspection time 21 pursuant to his employer’s instructions, but he was paid for the hours he logged. (See 22 SAC ¶¶ 41–43.) It might subsequently be determined that he was entitled to log more 23 hours and therefore earned the right to additional compensation. Such a determination 24 will be remedied by the violated wage and hour law itself, not the wage statement 25 statute. 26 For these reasons, permitting Pimentel to recover on the derivative wage 27 statement causes of action would lead to an impermissible double recovery. 28 See Castro v. Wal-Mart, Inc., No. 2:20-cv-00928 JAM KJN, 2020 WL 4748167, at *2

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1 (E.D. Cal. Aug. 17, 2020) (dismissing a wage statement claim based on finding that 2 plaintiff’s “allegation for failure to compensate off-the-clock work will be remedied 3 by her wage and hour claim”). The Court therefore GRANTS Home Depot’s Motion 4 to Dismiss the third cause of action. 5 Next, the Court turns to Pimentel’s PAGA claim, which relies in part on the 6 now-dismissed third cause of action. PAGA is a statutory mechanism whereby “an 7 ‘aggrieved employee’ may bring a civil action personally and on behalf of other 8 current or former employees to recover civil penalties for Labor Code violations.’” 9 Iskanian v. CLS Transp. L.A., LLC, 59 Cal. 4th 348, 380 (2014) (quoting Arias v. 10 Superior Court, 46 Cal. 4th 969, 980–81 (2009)). Because a PAGA claim is based on 11 violations of discrete provisions of the Labor Code, courts regularly order partial 12 dismissal of PAGA claims when certain predicate Labor Code violations are 13 implausible, ill-pled, or otherwise not viable. See, e.g., Bato v. Lab. Corp. of Am. 14 Holdings, No. 09-04671 MMM (Ex), 2010 WL 11459908, at *8 (C.D. Cal. Feb. 8, 15 2010). Therefore, the Court also GRANTS Home Depot’s Motion to dismiss 16 Pimentel’s PAGA claim, the seventh cause of action, to the extent it relies on the now- 17 dismissed third cause of action. 18 Finally, the Court finds that providing Pimentel with leave to amend would be 19 futile and therefore grants dismissal of the aforementioned claims without leave to 20 amend. See Carrico, 656 F.3d at 1008. Here, Pimentel’s claims are dismissed on the 21 following bases: (1) Pimentel does not dispute that he cannot establish an element of 22 his UCL claim; (2) Pimentel’s third cause of action is derivative of his second cause 23 of action, constituting impermissible double recovery; (3) Pimentel’s PAGA claim 24 relies to some extent on his impermissible third cause of action. Pimentel could not 25 remedy any of these deficiencies by amending his complaint. Accordingly, the Court 26 grants Home Depot’s Motion without leave to amend. 27 28

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1 CONCLUSION 2 For the reasons discussed above, the Court GRANTS Defendants’ Motion to 3 || Dismiss without leave to amend. (ECF No. 19.) 5 IT IS SO ORDERED. 6 7 January 21, 2022 A ff . Lied iail 9 OTIS D. WRIGHT, II 0 UNITED STATES DISTRICT JUDGE

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