1 O 2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 LORENZO RIVERA, Case No. 2:19-cv-05050-ODW(KSx) 12 Plaintiff,

ORDER DENYING MOTION TO

13 v.

DISMISS FIRST AMENDED

14 MARRIOTT INTERNATIONAL, INC. et al. COMPLAINT OR IN THE 15 Defendants. ALTERNATIVE, STRIKE CLASS

ALLEGATIONS [25]

16 17 I. INTRODUCTION 18 On April 24, 2019, Plaintiff Lorenzo Rivera (“Rivera”) filed this putative class 19 action in Los Angeles Superior Court against Marriot International, Inc. (“MII”) and 20 other Doe Defendants. (Notice of Removal (“Removal”) Ex. A (“Compl.”), ECF No. 21 1-1.) On June 10, 2019, MII removed the action pursuant to the Class Action Fairness 22 Act, 28 U.S.C. § 1332(d) (“CAFA”). (Removal 1, ECF No. 1.) Rivera filed an 23 amended Complaint on December 16, 2019. (First Am. Compl. for Damages 24 (“FAC”), ECF No. 24.) MII now moves to dismiss or, in the alternative, strike 25 Rivera’s class allegations. (Mot. to Dismiss or Strike Class Allegations (“Mot.”), 26 ECF No. 25.) For the reasons that follow, the Court DENIES MII’s Motion.1 27

28 1 After carefully considering the papers filed in support of and in opposition to the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. 1 II. FACTUAL BACKGROUND 2 MII, a Delaware corporation with its principal office in Maryland, operates 3 hotels and resorts throughout California. (FAC ¶ 10.) Rivera worked as a dishwasher 4 at MII’s Marina Del Rey hotel from approximately August 2017 to October 2018. 5 (FAC ¶¶ 7–8.) 6 Rivera brings this class action on behalf of himself and the putative class he 7 seeks to represent (collectively the “Class”). The Class consists of “all non-exempt 8 employees, including, but not limited to, dishwashers, cooks, runners, bartenders, 9 servers, cashiers, other food and beverage staff, housekeeping staff, front desk staff, 10 maintenance staff, and guest service representatives currently and/or formerly 11 employed by Defendant[s] . . . during the Class Period.” (FAC ¶ 1.) Rivera alleges 12 eight causes of action against Defendants: (1) Failure to Pay Wages; (2) Failure to 13 Provide Meal Periods; (3) Failure to Authorize or Permit Rest Periods; (4) Failure to 14 Pay Wages Due at Separation of Employment; (5) Failure to Provide Accurate Wage 15 Statements and Failure to Issue and Maintain Records; (6) Failure to Indemnify for 16 Expenditures or Losses in Discharge of Duties; (7) Unfair Business Practices; and (8) 17 Penalties Under the Private Attorneys General Act. (FAC ¶¶ 2, 38–107.) 18 III. LEGAL STANDARD 19 A. Motion to Dismiss 20 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal 21 theory or the absence of sufficient facts alleged under a cognizable legal theory.” 22 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “To survive a 23 motion to dismiss . . . under Rule 12(b)(6), a complaint generally must satisfy only the 24 minimal notice pleading requirements of Rule 8(a)(2)”—a short and plain statement of 25 the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); see also Fed. R. Civ. P. 26 8(a)(2). The “[f]actual allegations must be enough to raise a right to relief above the 27 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The 28 “complaint must contain sufficient factual matter, accepted as true, to state a claim to 1 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 2 (internal quotation marks omitted). “A pleading that offers ‘labels and conclusions’ or 3 ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (citing 4 Twombly, 550 U.S. at 555). 5 Whether a complaint satisfies the plausibility standard is “a context-specific 6 task that requires the reviewing court to draw on its judicial experience and common 7 sense.” Id. at 679. A court is generally limited to the pleadings and must construe 8 “[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most 9 favorable to [the plaintiff].” Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) 10 (internal quotation marks omitted). But a court need not blindly accept conclusory 11 allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. 12 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 13 B. Motion to Strike 14 Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from 15 a pleading an insufficient defense or any redundant, immaterial, impertinent, or 16 scandalous matter.” The decision whether to grant a motion to strike is made at the 17 court’s discretion. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), 18 rev’d on other grounds, 510 U.S. 517 (1994). In using its discretion, the court must 19 view the pleadings in the light most favorable to the non-moving party. In re 20 2TheMart.com Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). 21 Courts may grant a motion to strike “to avoid the expenditure of time and 22 money that must arise from litigating spurious issues by dispensing with those issues 23 prior to trial . . . .” Whitlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 24 2010) (quoting Fantasy, 984 F.2d at 1527). Courts may also grant such a motion in 25 order to streamline the resolution of the action and focus the jury’s attention on the 26 real issues in the case. See Fantasy, 984 F.2d at 1528. Yet, motions to strike are 27 generally disfavored due to the limited role that pleadings play in federal practice, and 28 1 because they are often used as a delaying tactic. Cal. Dep’t of Toxic Substances 2 Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). 3 IV. DISCUSSION 4 A. Rivera’s Opposition 5 As a preliminary matter, MII argues the Court should not consider Rivera’s 6 Opposition because it was filed eight days late. (See Reply in Support of Motion to 7 Dismiss (“Reply”) 2–3, ECF No. 28.) Rivera’s counsel acknowledges this delay and 8 blames it on “clerical error” resulting in improper calendaring of the deadline. (See 9 Declaration of Alex Perez in Support of Plaintiff’s Opposition ¶ 8, ECF No. 27.)2 10 Rule 6(b)(1)(B) provides that the court may, for good cause, extend the time for 11 a party to act “if the party failed to act because of excusable neglect.” “[L]ike all the 12 Federal Rules of Civil Procedure, [Rule 6(b) is] to be liberally construed to effectuate 13 the general purpose of seeing that cases are tried on the merits.” Ahanchian v. Xenon 14 Pictures, Inc., 624 F.3d 1253, 1258–59 (9th Cir. 2010) (internal quotation marks 15 omitted). 16 Given the importance of the relief that MII is seeking—dismissal or striking of 17 Rivera’s class allegations without leave to amend—and Plaintiff’s counsel 18 explanation, the Court will consider the untimely Opposition. MII does not argue that 19 it was prejudiced by the delay; indeed, it could have requested an extension of time to 20 file its Reply but did not. Further, the delay did not significantly impact the 21 management of this case and there is no evidence of bad faith. See Pioneer Inv. Servs. 22 Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993) (discussing 23 circumstances to consider when evaluating excusable neglect, including “the danger 24 2 MII objects to counsel’s explanation on two grounds. First, MII argues that counsel failed to file a 25 motion to extend time under Rule 6(b)(1)(B). (See Objections to the Decl. of Alex Perez (“MII Objections”) 6–7, ECF No. 28-2.) Second, MII argues that counsel’s statement lacks foundation. 26 (See id. 7.) MII’s objections are OVERRULED. Although counsel could have been clearer, the Court construes his apology and explanation for the delay as a motion for extension of time under 27 Rule 6(b). Moreover, counsel did in fact assert personal knowledge of the clerical error, which the 28 Court has no reason to second-guess given his status as an associate of his firm and attorney of record filing the Opposition in question. (See Perez Decl. ¶ 2.) 1 of prejudice,” the length of the delay and impact on proceedings, “the reason for the 2 delay . . . and whether the movant acted in good faith”); Briones v. Riviera Hotel & 3 Casino, 116 F.3d 379, 381 (9th Cir. 1997) (noting that the Pioneer analysis of 4 excusable neglect is applicable to requests under Rule 6(b)). 5 Nevertheless, exactly because of the importance of this Motion to Plaintiff’s 6 case, the Court finds it troubling that counsel would neglect to file his Opposition for 7 over a week. Plaintiff’s counsel is on notice that the Court will not tolerate future 8 violations of its rules. 9 B. Application of Rule 8 and Rule 12(f) to Class Allegations 10 MII moves to dismiss or strike Rivera’s class allegations for failure to plead 11 with specificity. (See Mot. 12, 16 n.5.) MII argues that Rivera failed to adequately 12 plead commonality and typicality as part of his state-wide and location-wide class 13 allegations. (See Mot. 12–15.) Specifically, MII contends that Rivera must explain 14 the basis for his belief that the allegedly unlawful practices are uniform across MII’s 15 hotels; demonstrate that he is similarly situated to his putative Class members; and 16 assert factual allegations identifying other hotels and explaining how each alleged 17 violation manifested at those locations. (See Mot. 13–14.) Rivera responds that he 18 has plausibly alleged that he is similarly situated to the putative Class he seeks to 19 represent and that MII’s employment policies and practices were uniform across its 20 hotels. (See Opp’n to Mot. (“Opp’n”) 3, ECF No. 26.) 21 The Court rejects MII’s arguments for several reasons. First, although some 22 courts have granted motions to strike class allegations under Rule 12(f), “it is in fact 23 rare to do so in advance of a motion for class certification.” Cholakyan v. Mercedes- 24 Benz USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D. Cal. 2011) (collecting cases). 25 Courts are hesitant to strike class allegations before the parties have had an 26 opportunity to develop the factual record and go through the class certification 27 process. See, e.g., Rennick v. NPAS Sols., LLC, No. CV 19-02495-ODW (KSx), 2020 28 WL 244170, at *2 (C.D. Cal. Jan. 16, 2020) (citing cases). 1 Here, the Court has not issued a Scheduling Order and presumably, no 2 discovery has taken place. Thus, the Court cannot conclude that there are no 3 circumstances under which the proposed Class could proceed. See In re Wal-mart 4 Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 615–16 (N.D. Cal. 2007) 5 (declining to rule on defendant’s motion to dismiss or strike class allegations at the 6 pleadings stage because, even though “plaintiffs’ class definitions are suspicious and 7 may in fact be improper, plaintiffs should at least be given the opportunity to make the 8 case for certification based on appropriate discovery.”) 9 Second, the Court is not persuaded by MII’s Rule 8 argument. MII argues that 10 at the pleading stage, “a plaintiff must include specific factual allegations that [Rule 11 23’s] class action requirements are satisfied.” (Mot. 11 (citing several California 12 federal cases).) According to MII, Rivera must also “allege facts that would plausibly 13 suggest that members of the putative class are subjected to the same offending 14 policies.” (See Mot. 12 (quoting Mendez v. J.H. Heinz Co., No. CV 12-05652-GHK 15 (DTBx), 2012 WL 12888526, at *4 (C.D. Cal. Nov. 13, 2012)).) Nevertheless, the 16 Ninth Circuit has yet to adopt MII’s theory of class action pleading, and other courts 17 have expressly disagreed with its reasoning. See, e.g., Morrelli v. Corizon Health, 18 Inc., No. CV 18-01395-LJO (SABx), 2019 WL 918210, at *13 (E.D. Cal. Feb. 25, 19 2019) (“The Rule 8 pleading standard has not been held to govern class certification 20 allegations made under Rule 23.”); Meyer v. Nat’l Tenant Network, Inc., 10 F. Supp. 21 3d 1096, 1104 (N.D. Cal. 2014) (citing cases in support of proposition that class 22 allegations “are more appropriately addressed through Rule 23 for procedural 23 reasons”). 24 Here, the Court agrees with the reasoning of the Morrelli court. There, the 25 court denied defendant’s motion, finding it “inappropriate . . . to dismiss the class 26 allegations under either Rule 12(b)(6) or strike them under Rule 12(f).” 2019 WL 27 918210, at *13. The court reasoned that “[b]ecause class actions are procedural 28 devices and not claims for relief under Rule 8, it is incongruent to impose a Rule 8 1 pleading standard to the elements of class certification such as commonality and 2 typicality.” Id. The court also distinguished some of the same cases that MII cites 3 here, finding that they address situations where the named plaintiffs’ individual claims 4 did not meet the Rule 8 pleading standard. See id. (citing Ortiz v. Sodexho 5 Operations, LLC, No. CV 10-04158-R (RCx), 2010 WL 11552888 (C.D. Cal. Aug. 6 12, 2010) & Deleon v. Time Warner Cable LLC, No. CV 09-02438-AG (RNBx), 2009 7 WL 9426145 (C.D. Cal. July 17, 2009)). Unlike the defendants in Ortiz and Deleon, 8 MII does not argue that Rivera’s individual allegations are insufficient to serve as the 9 backbone of his class claims. Thus, at this stage in the litigation, the Court declines to 10 conclude that there are no circumstances under which the proposed Class could 11 proceed. 12 C. Rivera’s Second Amended Complaint3 13 As to the class claims, Rivera asks the Court for leave to amend his FAC to add 14 more specific allegations that MII maintained common employment practices 15 throughout California as evidenced by its employee handbook. (See Opp’n 6–7; 16 Proposed Second Amended Complaint ¶¶ 17–18, ECF No. 27.) The Court agrees that 17 these new allegations would clarify Rivera’s claims as to the uniformity of MII’s 18 state-wide and location-wide employment practices and address MII’s concerns of a 19 completely unwarranted fishing expedition. See Morrelli, 2019 WL 918210, at *13– 20 14 (drawing a reasonable inference from plaintiff’s class allegations that “the Rule 23 21 commonality and typicality requirements can be met, which is sufficient to ameliorate 22 concerns about potential discovery fishing expeditions”). Because the Court does not 23 find bad faith, undue delay, prejudice, or futility in Rivera’s proposed amendments, 24 the Court GRANTS Rivera leave to file the proposed second amended complaint. See 25 3 MII objects to consideration of the proposed second amended complaint, arguing that, on a motion 26 to dismiss, the Court must limit its inquiry to the complaint itself. (See MII Objections 5–6 (citing Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001)).) Here, however, 27 the Court is not looking to the proposed second amended complaint in determining the propriety of 28 dismissal. The Court already determined that dismissal of the class allegations under Rule 8 is inappropriate. For this reason, MII’s objections are OVERRULED. 1 || Pepsi-Cola Metro. Bottling Co. v. Ins. Co. of N. Am., Inc., No. CV 10-02696-S VW 2 || (MANx), 2010 WL 11549719, at *1 (C.D. Cal. Nov. 18, 2010); Fed. R. Civ. P. 3 | 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.’’). 4 Vv. CONCLUSION 5 MII’s arguments are more properly resolved on a motion for class certification 6 || after the Parties have had an opportunity to develop a factual record. Thus, the Court 7 || DENIES MII’s Motion to Dismiss. (ECF No. 25.) Rivera shall file and serve the 8 || proposed second amended complaint within seven days from the date of this Order. 9 10 IT IS SO ORDERED. 11 12 April 23, 2020 13 ‘ “ 14 Gill: Ya Mit 15 OTIS D. WRIGHT, II 16 UNITED STATES DISTRICT JUDGE

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