Perez v. DNC Parks & Resorts at Sequoia, 1:19-cv-00484-DAD-SAB

DAVID PEREZ and MARIA SOCORRO VEGA,individually and on behalf of others similarly situated, Plaintiffs, v. DNC PARKS & RESORTS AT SEQUOIA,a California corporation; et al., Defendants.

No. 1:19-cv-00484-DAD-SAB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

July 29, 2020

ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING DEFENDANTS' MOTION TO STRIKE AS MOOT

(Doc. Nos. 39, 40, 41)

INTRODUCTION

This matter is before the court on the motions to dismiss and to strike filed by defendants. (Doc. Nos. 39, 40.) Defendants consist of DNC Parks & Resorts at Sequoia, Inc. ("DNC Sequoia"), DNC Parks & Resorts at Yosemite, Inc. ("DNC Yosemite"), Delaware North Companies, Inc. ("DNC Inc."), DNC Parks & Resorts at Kings Canyon, Inc. ("DNC Kings Canyon"), DNC Parks & Resorts at Tenaya, Inc. ("DNC Tenaya"), and Delaware North Companies Parks & Resorts, Inc. ("DNC Parks") (collectively, "defendants"). The court deemed the matter suitable for decision on the papers pursuant to Local Rule 230(g). (Doc. No. 48.) For the reasons set forth below, the court will grant in part defendants' motion to dismiss and deny their motion to strike as moot.

BACKGROUND

Plaintiff David Perez initiated this putative class action in Tulare County Superior Court on February 28, 2019. (Doc. No. 1.) Defendants removed the action to this federal court on April 12, 2019, and then moved for judgment on the pleadings on August 19, 2019. (Doc. Nos. 1, 17.) On October 31, 2019, the court granted defendants' motion, dismissed plaintiff's complaint, and rejected plaintiff's proposed amended complaint, finding it to be fatally defective. (Doc. No. 36; see Doc. No. 28.) However, the court granted plaintiff limited leave to amend to (1) file a new amended complaint to cure the deficiencies identified by the court, (2) add Maria Socorro Vega as a plaintiff, and (3) add claims under the federal Fair Labor Standards Act ("FLSA"). (Doc. No. 36 at 21-22.)

Plaintiffs Perez and Vega subsequently filed their First Amended Complaint ("FAC") on November 14, 2019, in which they allege various labor law claims under California's Labor Code, Unfair Competition Law ("UCL"), and Private Attorneys General Act ("PAGA"), as well as the FLSA. (See Doc. No. 38, FAC.) On November 27, 2019, defendants moved to dismiss and to strike plaintiffs' FAC. (Doc. Nos. 39, 40.) Plaintiffs filed their oppositions to the motions on January 8, 2020, and defendants replied on January 15, 2020. (Doc. Nos. 44, 45, 46, 47.)

REQUEST FOR JUDICIAL NOTICE

Defendants request that the court take judicial notice of the following documents: (1) the Joint Rule 26(f) Report filed in this matter; (2) the Declaration of Derek Zwickey in Support of Defendants' Notice of Removal, which was filed in this action; and (3) the Charge of Discrimination form filed by plaintiff Vega with the California Department of Fair Employment and Housing ("DFEH"). (Doc. No. 41.)

Although courts generally cannot consider material beyond the complaint in ruling on a Rule 12(b)(6) motion, a court may take "judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not subject to reasonable dispute." Intri-Plex Techs. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (internal quotation marks omitted). Federal Rule of Evidence 201 specifies that a court can take judicial notice of an adjudicative fact if that fact "is not subject to reasonable dispute" because it either "(1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." However, "[j]ust because the document itself is susceptible to judicial notice does not mean that every assertion of fact within that document is judicially noticeable for its truth." Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). For this reason, courts should not take judicial notice of a fact contained within a document if that fact "is subject to varying interpretations, and there is reasonable dispute as to what [the document] establishes." Reina-Rodriguez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011).

First, the court declines to take judicial notice of the Joint Rule 26(f) Report. The report is already a part of the record in this case, and, if appropriate, the court will consider the record in ruling on the pending motions. See Diaz v. Macy's W. Stores, Inc., No. 8:19-cv-00303-ODW (MAAx), 2019 WL 6682383, at *2 (C.D. Cal. Dec. 6, 2019). However, defendants seek to rely on the report to show that plaintiff Perez was employed only by DNC Kings Canyon and not by the other defendants named in this action. (Doc. No. 39 at 13.) But discovery responses—even party admissions—are inherently subject to reasonable dispute and do not come from "sources whose accuracy cannot reasonably be questioned." Germuhendislik Taahüt Proje v. Mems Precision Tech., Inc., No. 2:13-cv-05019-PSG-PJW, 2014 WL 12696767, at *3 (C.D. Cal. May 13, 2014) (quoting Fed. R. Evid. 201(b)(2)). The Joint Rule 26(f) Report in this case is thus not properly subject to judicial notice. See United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (explaining that only "indisputable" facts are subject to judicial notice).

For the same reason, the court declines to take judicial notice of the Zwickey Declaration. The declaration of the Chief Operating Officer of DNC Parks, is not a matter of public record free from reasonable dispute or otherwise properly subject to judicial notice.¹

///// Finally, the court takes judicial notice of the fact that plaintiff Vega filed a Charge of Discrimination form with the DFEH but not of the facts alleged therein. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (holding that judicial notice is appropriate for "undisputed matters of public record" but not for "disputed facts stated in public records").

LEGAL STANDARD

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (citation omitted). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In resolving a Rule 12(b)(6) motion, "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Naruto v. Slater, 888 F.3d 418, 421 (9th Cir. 2018) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). However, the court need not accept as true allegations that are "merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell, 266 F.3d at 988. Neither must the court "assume the truth of legal conclusions cast in the form of factual allegations." Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008) (citation omitted).

While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). It is also inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

DISCUSSION

A. Motion to Dismiss

Defendants move to dismiss each of plaintiffs' ten claims on various grounds. They also move to dismiss plaintiff's class allegations. The court addresses each of these arguments below.

1. Defendants' Employer Status

Defendants contend that plaintiff Vega failed to sufficiently plead her employment by defendants, pointing out that she did not "state her job title, job duties, shift schedule, hours of work, supervisor(s) or whether she was a full-time employee." (Doc. No. 39-1 at 15-16.) But Vega did allege that she has been employed as a housekeeping employee by defendants at their Tenaya Lodge location since 2017. (FAC at ¶ 4.) She has thus alleged her job function, her dates of employment, and the physical location where she works. The court can also infer from these allegations that Vega is employed by DNC Tenaya.² Accordingly, plaintiff Vega has adequately alleged the requisite details of her employment by DNC Tenaya. (Cf. Doc. No. 36 at 11 (dismissing in part because plaintiff had failed to allege "his job title, his job description or duties, the dates of his employment, the physical location(s) where he worked, or the specific defendant(s) for which he worked").)

For the same reason, plaintiff Perez has also sufficiently pled his employment by defendant DNC Kings Canyon. In the FAC, Perez alleges that he was employed as a housekeeper and dishwasher between September 2016 and November 2016 and again between May 2017 until October 2018 at facilities in Kings Canyon National Park, including at the John Muir Lodge and the Grant Grove Restaurant. (FAC at ¶ 3.) He has thus adequately alleged his job function, his dates of employment, and the physical locations where he worked. The court can...