Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 1 of 21 Page ID #:1637
`
`
`
`
`David P. Myers (SBN 206137)
`dmyers@myerslawgroup.com
`
`Robert M. Kitson (SBN 214091)
`rkitson@myerslawgroup.com
`
`Jason Hatcher (SBN 285481)
`
`jhatcher@myerslawgroup.com
`THE MYERS LAW GROUP, A.P.C.
`
`9327 Fairway View Place, Suite 100
`Rancho Cucamonga, CA 91730
`
`Telephone: (909) 919-2027
`Facsimile: (888) 375-2102
`
`Attorneys for Plaintiffs and
`all other similarly situated.
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`
`Case No. 2:18-cv-08809-FLA-MRW
`
`CLASS ACTION
`
`PLAINTIFFS’ OPPOSITION TO
`DEFENDANT’S RULE 12(B)(6)
`MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
`
`Date: November 18, 2019
`Time: 1:30 p.m.
`Courtroom: 10A
`
`Action Filed: August 24, 2018
`
`
`NATASHA AYALA, as an individual
`and as a representative party under the
`California Private Attorney General Act
`(“PAGA”); KELLEN SHAW, as an
`individual and as proposed class
`representative under Fed.R.Civ.Proc. 23,
`
`
`
`Plaintiff,
`
`
`vs.
`
`AT&T MOBILITY SERVICES, LLC, a
`Delaware Limited Liability Company;
`and DOES 1 THROUGH 100, inclusive
`
`
`Defendants.
`
`
`
`
`
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`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 2 of 21 Page ID #:1638
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`TABLE OF CONTENTS
`INTRODUCTION ......................................................................................... - 1 - 
`I. 
`II.  STATEMENT OF FACTS ........................................................................... - 3 - 
`III.  DEFENDANT’S MOTION TO DISMISS SHOULD BE DENIED ......... - 5 - 
`A.  Rule 12(b)(6) Legal Standard ....................................................................... - 5 - 
`B.  The Third Amended Complaint Adequately Alleges that Plaintiff Shaw and the
`Class Earned Overtime ................................................................................. - 6 - 
`1.  Defendant’s Answer Admits that the Factual Allegations Exist ............ - 6 - 
`2.  The TAC Pleads a Plausible Cause of Action that Overtime and Double
`Time Pay Was Not Paid at the Correct Regular Rate of Pay ........................... - 8 - 
`C.  The TAC Adequately Alleges That Defendant Omitted Required Commissions
`and Remuneration from the Regular Rate of Pay ......................................... - 9 - 
`IV.  DEFENDANT’S MOTION TO STRIKE SHOULD BE DENIED ........ - 10 - 
`A.  Rule 12(f) Legal Standard .......................................................................... - 10 - 
`B.  Plaintiff Shaw is Not Estopped From Pleading or Moving for Class
`Certification on the Rest Period Claim ....................................................... - 11 - 
`C.  The California Supreme Court is Reviewing the Naranjo Opinion And Whether
`Meal/Rest Period Premium Pay Gives Rise to Waiting Time Penalties and/or
`Wage Statement Penalties .......................................................................... - 12 - 
`D.  Plaintiff Ayala’s PAGA Claim ................................................................... - 14 - 
`V.  DEFENDANT FAILED TO MEET AND CONFER .............................. - 15 - 
`VI.  CONCLUSION ............................................................................................ - 16 - 
`
`
`
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`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 3 of 21 Page ID #:1639
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`TABLE OF AUTHORITIES
`
`Cases 
`ABS Entm't, Inc. v. CBS Corp.
`(9th Cir. 2018) 900 F.3d 1113 ........................................................................... - 12 -
`Alvarado v. Dart Container Corp. of California
`(2018) 4 Cal.5th 542 ............................................................................................ - 9 -
`Ashcroft v. Iqbal
`(2009) 556 U.S. 662 [129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, 884] ......... - 1 -, - 6 -
`Baas v. Dollar Tree Stores, Inc., 2007 WL 2452150, 1 (N.D. Cal Aug. 29, 2007) - 5 -
`, - 6 -
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) .................................................................................... - 5 -, - 6 -
`Cholakyan v. Mercedes-Benz USA, LLC,
`796 F. Supp. 2d 1220 (C.D. Cal. 2001) ............................................................. - 11 -
`Cruz v. Beto,
`405 U.S. 319 (1972) ............................................................................................ - 5 -
`Ferra v. Loews Hollywood Hotel, LLC
`(2021) 11 Cal.5th 858 ...................................................................................... passim
`Furry v. East Bay Publishing, LLC
`(2018) 30 Cal.App.5th 1072 ................................................................................ - 9 -
`Hall v. City of Santa Barbara,
`833 F.2d 1270 (9th Cir. 1986) ............................................................................. - 5 -
`Jimenez v. Unified Grocers, Inc.
`(C.D.Cal. Oct. 6, 2017, No. 2:17-cv-01396-RGK-SK) 2017 U.S.Dist.LEXIS
`223530, 2 ........................................................................................................... - 12 -
`
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 4 of 21 Page ID #:1640
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`
`
`Kazi v. PNC Bank, N.A.
`(N.D.Cal. Mar. 15, 2021, No. 18-cv-04810-JCS) 2021 U.S.Dist.LEXIS 48413, 66 -
`14 -
`Klune v. Ashley Furniture Indus.
`(C.D.Cal. Oct. 27, 2014, No. CV 14-3986 PA (MANx)) 2014 U.S.Dist.LEXIS
`185192 ............................................................................................................... - 12 -
`Landers v. Quality Communs., Inc.
`(9th Cir. 2015) 771 F.3d 638 ....................................................................... - 1 -, - 7 -
`Murphy v. Kenneth Cole Productions, Inc.
`(2007) 40 Cal.4th 1094 ...................................................................................... - 13 -
`Naranjo v. Spectrum Sec. Servs., Inc.,
`40 Cal. App. 5th 444 (2019) ................................................. - 2 -, - 12 -, - 13 -, - 15 -
`Neilson v. Union Bank of Cal., N.A.,
`290 F. Supp. 2d 1101 (C.D. Cal. 2003) ............................................................. - 11 -
`Razo v. AT&T Mobility Servs., LLC
`(E.D.Cal. Oct. 13, 2021, No. 1:20-cv-00172) 2021 U.S.Dist.LEXIS 198646, 15) - 2
`-, - 3 -
`Retail Clerks Intl Assn. v. Schermerhorn,
`373 U.S. 746 n.6 (1963) .............................................................................. - 5 -, - 8 -
`Rivera v. Marriott Int'l, Inc.
`(C.D.Cal. Apr. 23, 2020) 2020 U.S.Dist.LEXIS 74704, 6 .................................. - 8 -
`Robertson v. Dean Witter Reynolds, Inc.,
`749 F.2d 530 (9th Cir. 1984) ............................................................................... - 6 -
`Sanders v. Kennedy,
`794 F.2d 478 (9th Cir. 1986) ............................................................................... - 5 -
`Sapiro v. Encompass Ins.,
`221 F.R.D. 513 (N.D. Cal. 2004) ...................................................................... - 11 -
`
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 5 of 21 Page ID #:1641
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`
`Swierkiewicz v. Sorema. N.A.,
`534 U.S. 506 (2002) ............................................................................................ - 6 -
`Tristar Pictures, Inc. v. Del Taco, Inc.,
`No. CV 99-07655 DDP (Ex), 1999 U.S. Dist. LEXIS 22605, 1 (C.D. Cal. Aug. 31,
`1999) .................................................................................................................. - 11 -
`Statutes 
`Cal. Labor Code § 2698, et seq. .............................................................................. - 5 -
`Cal. Labor Code §203 ................................................................................. - 12 -, - 13 -
`Cal. Labor Code §226 ...................................................................... - 12 -, - 13 -, - 14 -
`Cal. Labor Code §226.7 ..................................................................... - 5 -, - 12 -, - 14 -
`Cal. Labor Code §2699 ......................................................................................... - 14 -
`Cal. Labor Code §510(a) ......................................................................................... - 8 -
`Cal. Labor Code §512 ............................................................................................ - 5 -
`Cal. Labor Code §558 ........................................................................................... - 15 -
`Rules 
`F.R.C.P. 12(b)(6) ................................................................................................... - 11 -
`F.R.C.P. 12(f) ............................................................................................. - 10 -, - 11 -
`
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 6 of 21 Page ID #:1642
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`I.
`
`INTRODUCTION
`Defendant AT&T Mobility Services, LLC’s Motion to Dismiss and Motion to
`Strike against the Third Amended Complaint (“TAC”) should be Denied. Or, in the
`alternative, leave to amend should be granted such that Plaintiffs Kellen Shaw and
`Natasha Ayala (collectively “Plaintiffs”) can plead more evidentiary facts.
`First, the TAC pleads a plausible claim for relief for unpaid overtime and
`double time such that (i) the Class worked overtime and double time hours and thus
`earned overtime and double time premium pay, and (ii) when Defendant paid the Class
`overtime and double time premium pay it was underpaid due to the failure to properly
`include commissions and other required remuneration in the calculation of the regular
`rate of pay.
`Defendant’s Motion argues not for a “plausible” pleading standard but rather
`for the impossible “probability” standard that was rejected by the US Supreme Court.
`That is the “standard does not rise to the level of a probability requirement, but it
`demands ‘more than a sheer possibility that a defendant has acted unlawfully. . .
`.’” Landers v. Quality Communs., Inc. (9th Cir. 2015) 771 F.3d 638, 641; citing
`Ashcroft v. Iqbal (2009) 556 U.S. 662, 678 [129 S.Ct. 1937, 1949, 173 L.Ed.2d 868,
`884].
`Next, Plaintiff Shaw has not abandoned her right to bring class claims for rest
`period premium violations simply because Plaintiff Ayala previously did not move
`for certification of these claims. The Court granted leave to amend. Moreover,
`Plaintiff Shaw could have filed a separate lawsuit seeking these very claims. This
`Court has made no substantive ruling on the rest period class claims. Defendant’s
`Motion should be denied here.
`Third, California law is unsettled as to whether employees are entitled to
`waiting time penalties or wage statement penalties for allegedly unpaid meal-and-rest
`period premiums as this issue is fully brief and pending before the California Supreme
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 7 of 21 Page ID #:1643
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`Court. Naranjo v. Spectrum Sec. Servs., Inc., 40 Cal. App. 5th 444 (2019), review
`granted 257 Cal. Rptr. 3d 188 (2020).
`Fourth, the PAGA claim in the TAC clearly is seeking civil penalties. To the
`degree clarification is needed for the PAGA claim allegations leave to amend should
`be granted.
`Finally, Defendant’s Motion to Dismiss and Motion to Strike should be denied
`for Defendant’s failure to meet and confer pursuant to Local Rule 7-3 and the Court’s
`Standing Order.
`Defendant’s filed a very similar Motion to Dismiss in the related case of Razo
`v. T&T Mobility Servs., LLC, which makes the same or similar arguments that were
`denied. Razo v. T&T Mobility Servs., LLC, (E.D.Cal. Oct. 13, 2021, No. 1:20-cv-
`00172) 2021 U.S.Dist.LEXIS 198646, at *4-13).
`Further, at the same time Defendant filed these Rule 12 motions in this case, it
`is attempting to seek preliminary approval of a class action and PAGA action
`settlement for the Ayala matter and Razo matter claims in a separate recently filed
`case in San Bernardino Superior Court called Wallack, et al. v. AT&T Mobility
`Services, LLC. Id. at *15.
`Defendant is playing fast and loose with the Courts. The Ayala Matter was the
`first filed class action complaint/PAGA action, in 2018, notably limited to employees
`in Defendant’s California call centers. The next filed case was the Razo Matter, filed
`in 2019, covering all non-exempt employees for Defendant in California.
`In March 2021, while this case was essentially stayed pending the Supreme
`Court’s review of the Ferra opinion, and while Defendant was opposing pre-
`certification discovery in the Razo matter, Defendant was settling the class and PAGA
`claims from the Ayala/Razo matters in a yet to be filed class action complaint, and
`without participation by the Ayala Plaintiffs or the Razo Plaintiff:
`The record now reveals that defendant has settled yet another class
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 8 of 21 Page ID #:1644
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`action case raising claims similar to those presented here and in Ayala.
`That case was apparently settled on March 29, 2021 but was
`not filed until June 22, 2021 in San Bernardino County Superior Court
`(Wallack et al. v. AT&T Mobility, No. CIVSB2117915). (See Doc. No.
`24 at 7, 13.) Meanwhile, in May 2021, defendant refused to produce
`class wide discovery in this case, while never mentioning that it had
`already settled a parallel class action. (Id. at 13.)
`Razo v. AT&T Mobility Servs., LLC (E.D.Cal. Oct. 13, 2021, No. 1:20-cv-00172) 2021
`U.S.Dist.LEXIS 198646, at *15); [Dkt. 60] (“AT&T is pleased to inform the Court
`that Ayala is correct—it has settled the putative class and representative claims at-
`issue in this matter.”].
`
`Notably, the Wallack settlement for $4,040,000 was achieved based on
`discovery and motion work from the Razo and Ayala matters. Yet, again, this
`settlement was reached without participation of Plaintiffs Ayala, Shaw and Razo. The
`Plaintiff in Razo filed a Motion to Intervene in the Wallack matter, to which the Ayala
`Plaintiffs filed a notice of joinder that is set to be heard on October 29, 2021. (RJN 2).
`Defendant’s Motions lack good faith given the procedural posture of this case as well
`as Defendant’s efforts to settle all of the class and PAGA claims in this case.
`
`Defendant’s Motions should be denied. Or, in the alternative, leave to amend
`should be granted.
`II. STATEMENT OF FACTS
`Plaintiffs Kellen Shaw and Natasha Ayala are former California based call-
`
`center employees for Defendant. Plaintiffs were hourly, non-exempt employees. Both
`Plaintiffs received compensation that included commissions and other items of
`remuneration.
`Plaintiff Ayala filed her class action complaint on or about August 22, 2018 in
`Los Angeles Superior Court. Defendant removed the case on or about October 12,
`2018.
`On or about April 1, 2019, Plaintiff Ayala filed a Motion to Certify Class Action
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`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 9 of 21 Page ID #:1645
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`concurrently with a Motion for Leave to File a Second Amended Complaint (“SAC”).
`[Dkt. 28 and 30].
`On April 8, 2019, Defendant Opposed Plaintiff Ayala’s motion for leave to
`amend but Defendant did not oppose the leave to amend based on the same failure to
`state a claim arguments as made in the instant motions, despite the TAC and SAC
`containing the same/similar factual allegations. [Dkt. 31].
`It is highlighted that the these same or similar allegations, as alleged in the
`original Complaint, were plausible enough for Defendant to seek and establish CAFA
`jurisdiction removal based on the “plausible” allegations that the original Complaint
`put at-issue an amount in controversy that exceeded $5,000.000. [Dkt. 1].
`On or about April 25, 2019, the Central District Court granted Plaintiff Ayala’s
`motion for leave to amend and denied the motion to certify class action with leave to
`file a renewed motion for class certification after discovery of the new allegations in
`the SAC. [Dkt. 37].
`On or about April 29, 2019, Plaintiff Ayala filed her SAC. [Dkt. 38]. On May
`20, 2019, Defendant file an Answer to the SAC. [Dkt. 39].
`Following this, Plaintiff Ayala filed a renewed Motion to Certify Class Action
`on or about June 3, 2019. [Dkt. 40]. This Court denied this renewed motion to certify
`a class action while granting Plaintiff Ayala leave to amend the SAC to add an
`additional class representative due to concerns over Plaintiff Ayala’s adequacy as a
`class representative based on Defendant’s allegations against Plaintiff Ayala. Ayala v.
`AT&T Mobility Servs., LLC (C.D.Cal. Sep. 25, 2019, No. 2:18-cv-08809-SVW-
`MRW) 2019 U.S.Dist.LEXIS 228563.
`On or about October 16, 2019, Plaintiff Ayala amended her complaint with the
`addition of Plaintiff Shaw as a new putative class representative. [Dkt. 52]. In this
`Third Amended Complaint (“TAC”), Plaintiff Shaw, on behalf of herself and a
`putative Class composed of all current and former hourly non-exempt employees for
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 10 of 21 Page ID #:1646
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`AT&T, who worked at Call Centers located in California and received commission
`payments, alleges that Defendant: (1) failed to pay all overtime wages; (2) failed to
`provide rest periods; (3) failed to provide accurate wage statements; (4) failed to pay
`all wages due at separation; (5) violated California’s Unfair Competition Law; (6)
`Private Attorneys General Act (“PAGA”); and (7) violation of Labor Code §§512,
`226.7, and Wage Order 4. Plaintiff Ayala alleges, on behalf of herself, the aggrieved
`employees, and the Labor and Workforce Development Agency (“LWDA”), that the
`Labor Code violations set forth by Plaintiff Shaw are violative of Labor Code § 2698,
`et seq. and seeks civil penalties thereon. [Dkt. 52].
`Following the filing of the TAC, the parties stipulated to a stay of the pleadings
`in light of the Ferra Court of Appeal Opinion. [Dkt. 53]. The California Supreme
`Court’s decision in Ferra was issued on July 15, 2021. Ferra, 11 Cal. 5th 858.
`III. DEFENDANT’S MOTION TO DISMISS SHOULD BE DENIED
`A. Rule 12(b)(6) Legal Standard
`Motions to dismiss brought pursuant to Federal Rule of Civil Procedure
`12(b)(6) are viewed with disfavor and are rarely granted. Hall v. City of Santa
`Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986), overruled on other grounds; Baas v.
`Dollar Tree Stores, Inc., 2007 WL 2452150. at *1 (N.D. Cal Aug. 29, 2007). On a
`motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v.
`Beto, 405 U.S. 319, 322 (1972); Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir.
`1986). The court is bound to give plaintiff the benefit of every reasonable inference to
`be drawn from the well-pleaded allegations in the complaint. Retail Clerks Intl Assn.
`v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Therefore, a plaintiff need not
`necessarily plead a particular fact if that fact is a reasonable inference from the facts
`properly alleged. Id. A court should not dismiss a complaint for failure to state a claim
`if the factual allegations sufficiently “raise a right to relief above the speculative
`level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 11 of 21 Page ID #:1647
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`Rule 8 of the Federal Rules of Civil Procedure only requires that a pleading
`contain a “short and plain statement of the claim showing that the pleader is entitled
`to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). To survive a motion to
`dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state
`a claim to relief that is plausible on its face.” Id. at 678. “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.” Id.
`Determining whether a complaint will survive a motion to dismiss for failure to
`state a claim is a context-specific task that requires the reviewing court to draw on its
`judicial experience and common sense. Iqbal at 679. Ultimately, a complaint can only
`be dismissed for one of two reasons: (1) lack of a cognizable legal theory or (2)
`insufficient facts under a cognizable legal claim. Robertson v. Dean Witter Reynolds,
`Inc., 749 F.2d 530, 534 (9th Cir. 1984); Baas, 2007 WL 2452150, at *1. Courts may
`not dismiss a complaint in which the plaintiff has alleged “enough facts to state a claim
`to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554,
`570 (2007). Indeed, only where a plaintiff has not “nudged [his or her] claims across
`the line from conceivable to plausible” is the complaint properly dismissed. Id.; see
`also Swierkiewicz v. Sorema. N.A., 534 U.S. 506, 514 (2002) (“[A] court may dismiss
`a complaint only if it is clear that no relief could be granted under any set of facts that
`could be proved consistent with the allegations.”).
`B.
`The Third Amended Complaint Adequately Alleges that Plaintiff
`Shaw and the Class Earned Overtime
`1.
`Defendant’s Answer Admits that the Factual Allegations Exist
`Defendant’s Motion to Dismiss seeks to impose an amorphous “probability”
`standard and not a “plausibility” standard to the allegations in the TAC. This is non-
`sensical.
`Initially, the same or similar factual allegations in the TAC, as previously
`
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 12 of 21 Page ID #:1648
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`alleged in the original Complaint, were “plausible” enough for Defendant to establish
`a “plausible” allegation that the amount in controversy exceeded $5,000,000 for
`CAFA removal. [Dkt. 1]. That is, if the Plaintiffs’ allegations are not “plausible” then
`Defendant’s amount in controversy for Removal is not “plausible” because it is not
`based on “plausible” allegations from the complaint. This alone warrants a denial of
`the Motion to Dismiss here.
`Next, notwithstanding the extensive briefing and pre-certification discovery
`related to the factual allegations in this case, Defendant’s Motion is ludicrous given
`its Answer to the SAC, which made the same or similar substantive allegations as the
`TAC. See [Dkt. 52 and 38].
`
`The Ninth Circuit in Landers held that “at a minimum, a plaintiff asserting a
`violation of the FLSA overtime provisions must allege that she worked more than
`forty hours in a given workweek without being compensated for the hours worked in
`excess of forty during that week.” Landers v. Quality Communs., Inc. (9th Cir. 2015)
`771 F.3d 638, 645.
`
`This minimum standard is met here by the TAC, and the SAC. See [Dkt. 52 and
`38]. Defendant’s Answer to the SAC admits the same. See:
`Plaintiff Shaw and the Class were suffered and/or permitted to and
`worked in excess of eight (8) hours in a day and/or forty (40) hours in
`a week without receiving all earned overtime and double time pay for
`all overtime and double time hours worked. Despite knowing that
`Plaintiff Shaw and the Class were working overtime hours, Defendants
`refused to pay the full amount of overtime premiums for all overtime
`hours worked. [Dkt. 52, TAC, at p. 5, ¶19]; [Dkt. 38 at ¶19] (Similar
`allegation).
`And see Defendant’s Answer to SAC:
`Defendant admits that Plaintiff alleges that she and the purported
`“Class” were suffered and/or permitted to and worked in excess of eight
`(8) hours in a day and/or forty (40) hours in a week without receiving
`all earned overtime and double time pay for all overtime and double
`
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 13 of 21 Page ID #:1649
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`time hours worked. Defendant further admits that Plaintiff alleges that
`Defendant refused to pay the full amount of overtime premiums to
`Plaintiff and the purported “Class” for all overtime hours worked. [Dkt.
`39 at p. 11, ¶19 RESPONSE].
`See also e.g. [Dkt. 52, TAC, at p. ¶14]; [Dkt. 38, SAC, at ¶14]; [Dkt. 39 at ¶14
`RESPONSE].
`Contrary to Defendant’s assertions, Plaintiffs were not required to spell out in
`detail their day-to-day schedules or frequency of overtime underpayment in the
`complaint to state a claim for unpaid overtime wages. See Retail Clerks Intl Assn.,
`supra, 373 U.S. at 753 n.6 (plaintiff need not necessarily plead a particular fact if that
`fact is a reasonable inference from the facts properly alleged). Here, given Defendant’s
`denials, such a reasonable inference has been met. See e.g.:
`Defendant specifically denies that it failed to pay all earned overtime
`and double time pay for all overtime and double time hours worked to
`Plaintiff or any other employee who worked in excess of eight (8) hours
`in a day and/or forty (40) hours in a week. Defendant also denies that it
`refused to pay the full amount of overtime premiums for all overtime
`hours worked.[ Dkt. 39 at p. 10-11, ¶19 RESPONSE].
`
`This is sufficient class action pleading. Rivera v. Marriott Int'l, Inc. (C.D.Cal.
`Apr. 23, 2020) 2020 U.S.Dist.LEXIS 74704, at *6-9. Moreover, Defendant only first
`raised this after multiple rounds of pre-certification discovery and motions to certify
`a class action. Defendant’s Motion here should be denied or leave to amend should be
`granted.
`
` The TAC Pleads a Plausible Cause of Action that Overtime
`and Double Time Pay Was Not Paid at the Correct Regular
`Rate of Pay
`In California, in order to comply with Labor Code §510(a) and the Industrial
`Welfare Commission’s applicable Wage Order, the regular rate of pay must be
`calculated based on the workweek and include the per-hour value of any nonhourly
`compensation the employee has earned. Alvarado v. Dart Container Corp. of
`
`2.
`
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 14 of 21 Page ID #:1650
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`California (2018) 4 Cal.5th 542, 554 (“Regular rate of pay, which can change from
`pay period to pay period, includes adjustments to the straight time rate, reflecting,
`among other things, shift differentials and the per-hour value of any nonhourly
`compensation the employee has earned.”) (emphasis added).; Furry v. East Bay
`Publishing, LLC (2018) 30 Cal.App.5th 1072, 1081.
`The TAC makes factual allegations that Defendant’s regular rate calculation
`failed to include commission payments when calculating the regular rate of pay that
`resulted in undperpaid overtime and double time wages, [Dkt. 52 at ¶¶ 13, 15, 45];
`and that Defendant failed to pay Plaintiff Shaw and the Class overtime and double
`time wages at the correct regular rate of pay by failing to include all remuneration in
`the regular rate of pay calculation [Dkt. 52 at ¶¶15]. Defendant denied these factual
`allegations as part of its Answer to the SAC. [Dkt. 39].
`These factual allegations give rise to a plausible claim that Defendant underpaid
`overtime and double time premiums based on an incorrect regular rate of pay. That is,
`each of these allegations support the theory, and reasonable inference, that
`Defendant’s failure to include these commission payments, and other required
`remuneration earned by Plaintiff Shaw and the Class, in the regular rate of pay resulted
`in underpaid overtime and double time wages.
`Given the foregoing, Defendants’ Motion to Dismiss is without merit as to the
`TAC’s First Cause of Action. This Court should DENY Defendant’s Motion to
`Dismiss as to Plaintiff’s First Cause of Action. Or, in the alternative, leave to amend
`should be granted.
`C. The TAC Adequately Alleges That Defendant Omitted Required
`Commissions and Remuneration from the Regular Rate of Pay
`Defendant’s Motion here is non-sensical. The TAC alleges, in multiple
`locations that Plaintiff Shaw and the Class were paid commissions (i.e. “received
`commissions payments”) and that Defendant failed to incorporate commission
`
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`Case 2:18-cv-08809-FLA-MRW Document 63 Filed 10/22/21 Page 15 of 21 Page ID #:1651
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`payments when calculating the regular rate of pay for overtime and double time
`payments. [Dkt. 52 at ¶¶10, 13, 15, 44, 45].
`Here, for these same allegations in the SAC, Defendant responded by
`“den[ying] that it failed to include all remuneration or that it omitted or otherwise
`failed to incorporate commission payments when calculating the regular rate of pay
`for overtime and double time.” [Dkt. 39 at ¶45 RESPONSE].
`This is all that is required at the pleading stage. A plaintiff is not required to
`prove her case via evidentiary facts at the pleading stage. Defendant’s attempt to raise
`a factual dispute as to whether or not the commissions or other items of remuneration
`should have been included in the regular rate of pay calculation has no place in a Rule
`12(b)(6) Motion. Alvarado clearly states that the regular rate of pay includes “the per-
`hour value of any nonhourly compensation the employee has earned.” (emphasis
`added).
`Defendant’s implication that the court could not plausibly, through its judicial
`experience and common sense, infer the fact that the “received commission payments”
`by Plaintiff Shaw and the Class were earned prior to Defendant paying them is
`unreasonable. Thus, it is plausible that Plaintiff Shaw and Class were underpaid
`overtime and double time premiums based on the factual allegations that Defendant
`did not include these required remunerations when calculating the regular rate of pay.
`To the degree the Court believes more specific information regarding the
`overtime claim must be pleaded, despite the fact the claim was adequately laid out and
`understood by Defendant during both motions for class certification, leave to amend
`should be granted for Plaintiffs to provide the specific facts the Court deems
`necessary.
`IV. DEFENDANT’S MOTION TO STRIKE SHOULD BE DENIED
`A. Rule 12(f) Legal Standard
`Under Rule 12(f) of the Federal Rules of Civil Procedure, the court may strike
`PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS AND RULE
`12(F) MOTION TO STRIKE
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`“any re