Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 1 of 40
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`KENT HASSELL,
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`Plaintiff,
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`v.
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`UBER TECHNOLOGIES, INC.,
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`Defendant.
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`Case No. 20-cv-04062-PJH
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`DISMISS FIRST AMENDED
`COMPLAINT AND DENYING MOTION
`TO STRIKE CERTAIN CLASS
`ALLEGATIONS
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`Re: Dkt. No. 37
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`Defendant Uber Technologies, Inc.’s d/b/a Uber Eats (“defendant”) motion to
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`dismiss plaintiff Kent Hassell’s (“plaintiff”) first amended complaint (“FAC”) and strike
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`certain class allegations came on for hearing before this court on May 6, 2021. Plaintiff
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`appeared through his counsel, Shannon Liss-Riordan. Defendant appeared through its
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`counsel, Andrew Spurchise. Having read the parties’ papers and carefully considered
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`their arguments and the relevant legal authority, and good cause appearing, the court
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`hereby GRANTS IN PART and DENIES IN PART defendant’s motion to dismiss and
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`DENIES defendant’s motion to strike.
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`BACKGROUND
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`This case is a putative wage and hour class action premised on the alleged
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`violation of various California labor laws. Defendant provides food delivery services
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`through its “Uber Eats” mobile phone application (the “Uber Eats App”). Dkt. 33 (FAC) ¶
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`2, 10-11. Plaintiff has worked as an Uber Eats driver since January 2020. Id. ¶ 6.
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`Plaintiff seeks to certify a class comprising “all Uber Eats drivers who have worked in
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`California.” Id. ¶ 49.
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`The instant order represents the court’s second substantive consideration of
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`plaintiff’s pleadings. On December 7, 2020, the court dismissed all claims alleged in
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 2 of 40
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`plaintiff’s original complaint. Dkt. 30 (the “December 7, 2020 order”) at 20. To the extent
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`plaintiff premised his claim for declaratory relief on past violations, the court dismissed
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`that claim with prejudice. Id. at 18. The court permitted plaintiff to amend all other
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`claims. Id. The court directed plaintiff to correct all factual deficiencies in the remaining
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`claims and follow certain instructions when amending his minimum wage and overtime
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`claims. Id. The court will detail its December 7, 2020 order as necessary in the analysis
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`below.
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`On January 4, 2021, plaintiff filed his FAC. Dkt. 33. In it, plaintiff maintains
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`substantively identical background and class allegations to those proffered in his original
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`complaint. Dkt. 33-1 (redline comparing original complaint with FAC). Plaintiff continues
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`to allege that, since the California Supreme Court’s decision in Dynamex Operations
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`West v. Superior Court, 4 Cal. 5th 903 (2018) (Dynamex) and the California state
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`legislature’s passage of Assembly Bill 5 (A.B. 5) (previously codified at Labor Code §
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`2750.3 but recodified at Labor Code § 2775), defendant has misclassified plaintiff as an
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`“independent contractor” rather than an “employee.” FAC ¶¶ 2-4, 13-25, 46-47. Based
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`on that misclassification allegation, plaintiff brings claims for the following:
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`1. Violation of Labor Code § 2802 and the Industrial Welfare Commissions (“IWC”)
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`Wage Order 9-2001, Cal. Code Regs. tit. 8, § 11090 (“Wage Order 9”), premised
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`on defendant’s failure to reimburse drivers “for expenses they paid,” including
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`“gas, insurance, car maintenance, and phone and data charges.” Id. ¶¶ 58-59.
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`2. Violation of Labor Code §§ 1197, 1194, 1182.12, 1194.2, 1197.1, 1199, and Wage
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`Order 9 premised on defendant’s failure “to ensure its delivery drivers receive
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`minimum wage for all hours worked.” Id. ¶¶ 60-61.
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`3. Violation of Labor Code §§ 1194, 1198, 510, 554, and 2750.3, and Wage Order 9
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`premised on defendant’s failure “to pay its employees the appropriate overtime
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`premium for overtime hours worked as required by California law.” Id. ¶¶ 62-63.
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`4. Violation of Labor Code § 226(a) and Wage Order 9 premised on defendant’s
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`failure to provide accurate wage statements. Id. ¶¶ 64-65.
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`Northern District of California
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 3 of 40
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`5. Violation of Business & Professions Code § 17200, et. seq. (§ 17200), premised
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`on defendant’s purported violations of Labor Code §§ 2802, 1194, 1198, 510, 554,
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`1197, 1194, 1182.12, 1194.2, 1197.1, 226.8, 226(a), and 246. Id. ¶¶ 66-69.
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`In his FAC, plaintiff adds allegations to each of the above claims. Dkt. 33-1 ¶¶ 2
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`n.1, 27-48 (redline showing changes to similar claims alleged in the complaint). The
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`court will detail those additional allegations in its analysis below.
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`On February 1, 2021, defendant filed the instant motion. Dkt. 37. In it, defendant
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`asks the court to dismiss all claims alleged in the FAC. Id. Defendant also asks the court
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`to strike the FAC’s class allegations to the extent plaintiff seeks class certification “of
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`those bound by arbitration agreements with class action waivers.” Id. at 8.
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`The court addresses each request in turn below.
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`DISCUSSION
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`A. Legal Standard
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`A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims
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`alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Rule
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`8 requires that a complaint include a “short and plain statement of the claim showing that
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`the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6), dismissal
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`“is proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to
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`allege sufficient facts to support a cognizable legal theory.” Somers v. Apple, Inc., 729
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`F.3d 953, 959 (9th Cir. 2013). While the court is to accept as true all the factual
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`allegations in the complaint, legally conclusory statements, not supported by actual
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`factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79
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`(2009). The complaint must proffer sufficient facts to state a claim for relief that is
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`plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007).
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`B. Motion to Dismiss Analysis
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`In its opening brief, defendant argues that plaintiff’s claims fail for two major
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`independent reasons. First, defendant asserts that Proposition 22, a ballot initiative
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`approved by California voters in the November 2020 election, “abates” all claims alleged
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 4 of 40
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`in the FAC (the “abatement argument”). Dkt. 37 at 13-14. On December 16, 2020,
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`California codified Proposition 22 at Business & Professions Code §§ 7448-7467. The
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`section at the heart of defendant’s abatement argument is Business & Professions Code
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`§ 7451. The court will specifically refer to that section, as opposed to the uncodified
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`proposition more generally.
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`Second, defendant asserts that, except the claim for failure to reimburse business
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`expenses, all claims alleged in the FAC lack sufficient factual allegations. Id. at 14-28.
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`At the outset, the court notes that the abatement argument appears to raise novel
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`questions in a rapidly developing area of California law. That novelty aside, the parties’
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`briefing on the issues implicated by that argument falls short. However, this action is not
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`the court’s first pass on the abatement argument.
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`In Nicolas v. Uber Technologies, Inc., another action against defendant that is also
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`on the undersigned’s docket, the court previously permitted the California Employment
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`Lawyers Association and the Partnership for Working Families (“Amici”) to file an amicus
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`brief addressing a similar abatement argument. Nicolas, 19-cv-8228-PJH, Dkt. 65
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`(permitting leave to file Amici brief lodged at docket 58-1).
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`At oral argument on the motion at hand, plaintiff sought to “incorporate by
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`reference” Amici’s brief as part of his position. On May 20, 2021, the parties filed a
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`stipulation requesting that the court permit them to formally file that brief on this action’s
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`docket. Dkt. 48. As part of that stipulation, the parties further requested that the court
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`permit defendant to file a response to Amici’s brief and plaintiff to file a reply to such
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`response. Id. The court granted the parties’ request. Dkt. 49. The court has considered
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`the above-referenced filings on the abatement issue.1
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`The court will now address each of defendant’s major arguments in turn below.
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`1 When filing the Amici brief in this action, the parties failed to remove the electronic case
`filing (“ECF”) generated header from the Nicolas action. Given their failure, the Amici
`brief filed at docket 48 includes two overlapping ECF headers, neither of which is legible.
`To avoid confusion, the court will cite the Amici brief filed in the Nicolas action at docket
`58-1.
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 5 of 40
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`1.
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`The Court Denies Defendant’s Motion to the Extent Defendant Asserts
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`that Business & Professions Code § 7451 Abates Plaintiff’s Labor
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`Code Claims
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`In their papers, the parties and Amici cite numerous statutes and doctrines as
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`purportedly authoritative on the abatement argument. Those rules include the abatement
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`doctrine, the repeal doctrine, the retroactivity doctrine, the rationale underlying Dynamex,
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`as well as the text of the Business & Professions Code § 7451 and Labor Code § 2775.
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`These authorities are voluminous and wide-ranging. The particular language in
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`the cited statutes is critical and the distinctions between the cited doctrines are nuanced.
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`Given these complexities, the court will divide its discussion on the abatement argument
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`into two sections. First, the court will summarize the parties’ (and Amici’s) positions and
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`concurrently detail the statutes and doctrines underlying their positions. Second,
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`following that summary, the court will identify and address the shortcomings in both sides’
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`positions. In light of such shortcomings, the court cannot now conclusively determine
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`whether (or not) Business & Professions Code § 7451 abates plaintiff’s claims. Thus, the
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`court denies defendant’s motion to the extent it is premised on abatement. The court
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`makes this finding without prejudice to defendant’s ability to again raise this argument on
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`a motion for summary judgment following an opportunity for merits-based discovery.2
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`a.
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`The Proffered Arguments and Relevant Legal Rules
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`On April 30, 2018, the California Supreme Court issued its Dynamex decision. In
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`that case, the court considered the following:
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`Here we must decide what standard applies, under California
`law, in determining whether workers should be classified as
`employees or as independent contractors for purposes of
`California wage orders, which impose obligations relating to the
`minimum wages, maximum hours, and a limited number of very
`basic working conditions (such as minimally required meal and
`rest breaks) of California employees. Dynamex, 4 Cal. 5th 903,
`913-14 (emphasis in the original) (footnote omitted).
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`2 On June 9, 2021, the Ninth Circuit in Lawson v. GrubHub Holdings, Inc., No. 18-15386
`heard oral argument on a materially similar abatement issue. If the Ninth Circuit
`addresses that issue, the parties should discuss it in any motion for summary judgment.
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 6 of 40
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`Ultimately, the court in Dynamex held that the so-called ABC test applied to
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`determine whether a worker qualifies as an “employee” or “independent contractor” for
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`purposes of California’s wage orders. 4 Cal. 5th at 964. In effect, that test creates a
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`rebuttable presumption that a worker is an “employee,” as opposed to an “independent
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`contractor. Id. To rebut that presumption, a “hiring entity” (i.e., a purported employer)
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`must establish all of the following three factors (hence, the “A,” “B,” “C”):
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`A. That the worker is free from the control and direction of the
`hiring entity in connection with the performance of the work,
`both under the contract for the performance of the work and
`in fact.
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`B. That the worker performs work that is outside the usual
`course of the hiring entity's business.
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`C. That the worker is customarily engaged in an independently
`established trade, occupation, or business, the worker
`should be considered an employee and the hiring business
`an employer under the suffer or permit to work standard in
`wage orders. Id.
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`In a footnote, the court in Dynamex observed that this test appears in various
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`jurisdictions in one form or another. Id. at 956 n.23. It further noted that the ABC
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`conditions “set forth” by it “track[] the Massachusetts version of the ABC test.” Id.
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`To support its adoption of the ABC test, the court in Dynamex explained that:
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`In [its] view, this interpretation of the suffer or permit to work
`standard is faithful to its history and to the fundamental purpose
`of the wage orders and will provide greater clarity and
`consistency, and less opportunity for manipulation, than a test
`or standard that invariably requires the consideration and
`weighing of a significant number of disparate factors on a case-
`by-case basis. Id. at 964.
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`Apparently, the California Supreme Court was not alone in its “view” of how to
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`classify employees for purposes of the state’s wage orders. On September 18, 2019,
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`following the Dynamex decision, the California state legislature passed A.B. 5, which, as
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`suggested above, codified the ABC conditions articulated in Dynamex as part of the
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`Labor Code. That statute took effect on January 1, 2020. Cal. Lab. Code § 2750.3.
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`For reasons unknown to this court, the legislature subsequently repealed Labor
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`Code § 2750.3 and then recodified its standard at § 2775. That recodification took effect
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 7 of 40
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`on September 4, 2020. To date, the ABC test remains codified at Labor Code § 2775.
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`Fast-forward a few months. California voters passed Proposition 22. The relevant
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`portion of that proposition appears at Business & Professions Code § 7451. That section
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`states the following:
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`Notwithstanding any other provision of law, including, but not
`limited to, the Labor Code . . . , an app-based driver is an
`independent contractor and not an employee or agent with
`respect to the app-based driver's relationship with a network
`company if the following conditions are met:
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`a. The network company does not unilaterally prescribe
`specific dates, times of day, or a minimum number of hours
`during which the app-based driver must be logged into the
`network company's online-enabled application or platform.
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`b. The network company does not require the app-based
`driver to accept any specific rideshare service or delivery
`service request as a condition of maintaining access to the
`network company's online-enabled application or platform.
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`c. The network company does not restrict the app-based
`driver from performing rideshare services or delivery
`services through other network companies except during
`engaged time.
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`d. The network company does not restrict the app-based
`driver from working in any other lawful occupation or
`business. Cal. Bus. & Prof. Code § 7451.
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`The above sequence of legal developments lies at the core of defendant’s
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`abatement argument. In its opening brief, defendant asserts that Business & Professions
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`Code § 7451 “effectively repealed” the ABC test “as to delivery people.” Dkt. 37 at 13.
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`According to defendant, plaintiff “makes no effort” to allege that defendant fails to satisfy
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`any of the four conditions set forth in Business & Professions Code § 7451. Id. Thus,
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`defendant says, “at a minimum,” the court should dismiss plaintiff’s claims “to the extent
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`they are based on the time period post-dating [Business & Professions Code § 7451’s]
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`effective date of December 16, 2020.” Id.
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`But then defendant seeks more. Defendant says that the court must dismiss
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`plaintiff’s claims (regardless of when the underlying violation occurred) under California’s
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`abatement doctrine. Id. at 13-14. To support that contention, defendant principally relies
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`on the California Supreme Court’s decision in Governing Bd. v. Mann, 18 Cal. 3d 819
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`(1977) (“Mann”) and the Court of Appeals’ decision in Zipperer v. County of Santa Clara,
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`133 Cal. App. 4th 1013, as modified (Oct. 28, 2005) (“Zipperer”).
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`In Mann, the California Supreme Court has recognized that:
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`Although the courts normally construe statutes to operate
`prospectively, the courts correlatively hold under the common
`law that when a pending action rests solely on a statutory basis,
`and when no rights have vested under the statute, ‘a repeal of
`the statute without a saving clause will terminate all pending
`actions based thereon. Mann, 18 Cal. 3d at 829.
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`The court in Mann observed that this rule’s “most familiar application is in the
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`criminal realm,” however, “[a]s a host of California cases demonstrate . . . [its] reach . . .
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`has never been confined solely to criminal or quasi-criminal matters.” Id. at 830.
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`More recently, the court in Zipperer construed the above-referenced rule to mean:
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`[I]n other words, where the Legislature has conferred a remedy
`and withdraws it by amendment or repeal of the remedial
`statute, the new statutory scheme may be applied to pending
`actions without triggering retrospectivity concerns . . . Zipperer,
`133 Cal. App. 4th at 1023.
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`The court in Zipperer added that “legislative action can effect a partial repeal of an
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`existing statute . . . The justification for this rule is that all statutory remedies are pursued
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`with full realization that the legislature may abolish the right to recover at any time.” Id.
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`To determine whether a new statute terminates a preexisting claim, the court in Zipperer
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`articulated the following four factors:
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`1. The statutory nature of the subject claim.
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`2. The unvested nature of the claimed rights.
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`3. The timing of the elimination of those rights.
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`4. The nature of the mechanism by which the right of action was
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`eliminated. Id.
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`With respect to the second factor, the court in Zipperer stated:
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`Repeal of a remedial statute destroys a pending statutory
`action unless ‘vested or contractual rights have arisen’ under
`the statute. . . . Until it is fully enforced, a statutory remedy is
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 9 of 40
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`merely an ‘inchoate, incomplete, and unperfected right,’ which
`is subject to legislative abolition. Id. at 1024.
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`With respect to the third factor, the court in Zipperer stated:
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`Whenever the Legislature eliminates a statutory remedy ‘before
`a judgment becomes final, the legislative act destroys the right
`of action.’ . . . Repeal thus ‘wipes out the cause of action unless
`the same has been merged into a final judgment.’ . . . ‘If final
`relief has not been granted before the repeal goes into effect it
`cannot be granted afterwards, even if a judgment has been
`entered and the cause is pending on appeal.’ Id.
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`With respect to the fourth factor, the court in Zipperer explained:
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`Finally, we turn to the legislative mechanism by which the right
`of action is abolished. Typically, that mechanism is repeal or
`amendment of the remedial statute. . . . But we know of no rule
`of law that limits the Legislature to those methods. To the
`contrary, . . . even where ‘the words of the . . . statute are not
`expressly words of repeal without a saving clause . . . the effect
`is the same in so far as the application of the principles is
`concerned when the legislature by apt expression has
`withdrawn the right and remedy in particular cases, including
`all pending actions based thereon.’
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`. . .
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`The critical point is that ‘the legislature may take away the right
`of action itself.’ . . . As noted above, we look to the substance
`of the legislation—not its label—to determine whether it
`operates as a repeal. . . . The pivotal issue is whether the
`legislation constitutes ‘a substantial reversal of legislative
`policy’ that ‘represents the adoption of an entirely new
`philosophy’ vis-à-vis the prior enactment.” Id. at 1024-25.
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`In its opening brief, defendant asserts that all four Zipperer factors cut in favor of
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`abatement. Dkt. 37 at 14. To support that assertion, defendant proffers only a handful of
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`case string cites and a brief reference to the 2020 California Voter Guide. Id.
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`In his opposition, plaintiff disagrees. Dkt. 43 at 10-11. First, plaintiff asserts that
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`his claims resting on post-December 16, 2020 violations may survive at this stage of the
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`litigation because “it is yet to be determined” whether defendant complied with Business
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`& Professions Code § 7451’s four conditions. Id. at 10 n.1.
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`Second, plaintiff challenges defendant’s assertion that Business & Professions
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`Code § 7451 satisfies the first and fourth Zipperer factors. In particular, plaintiff asserts
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`that its misclassification allegation is premised not only on Labor Code § 2775 but also on
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 10 of 40
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`Dynamex. Id. at 10. Further, plaintiff argues that there has been “no repeal” of Labor
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`Code § 2775, albeit expressly or by implication. Id. at 11. To support that argument,
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`plaintiff relies on another California Supreme Court authority, Western Oil & Gas Ass’n v.
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`Monterery Bay Unified Air Pollution Control, 49 Cal. 3d 408 (1989) (“Western Oil”). Id.
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`In Western Oil, the California Supreme Court recognized that a statute may be
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`“repeal[ed] by implication.” Western Oil, 49 Cal. 3d at 419. It cautioned, however, that
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`“[a]ll presumptions are against” such a repeal. Id. It explained that “[t]he presumption is
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`strong where the prior act has been generally understood and acted upon.” Id.
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`The party arguing repeal bears the burden of overcoming this presumption. Id. at
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`420-22 (detailing shortcomings in appellant’s showing when rejecting that party’s
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`argument that subsequent authority impliedly repealed prior statutory authority). Such
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`party may meet that burden only if it shows that two conditions are present. First, “the
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`two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two
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`cannot have concurrent operation . . . There must be no possibility of concurrent
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`operation.” Id. at 419-20 (emphasis in the original). Second, a subsequent statute must
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`“give[] undebatable evidence of an intent to supersede the earlier” statute. Id. at 420
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`(emphasis in the original).
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`Plaintiff asserts that neither requirement for showing that Business Professions
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`Code § 7451 impliedly repeals Labor Code § 2775 is met here. First, plaintiff argues that
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`both sections “can and do operate concurrently.” Dkt. 43 at 11. Plaintiff explains that
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`Labor Code § 2775 “mandates an ABC test for employee status” and Business &
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`Professions Code § 7451 “creates a narrow exception to [Labor Code § 2775] that
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`applies only to certain ‘app-based drivers’ and only if the companies meet a set of
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`stringent conditions.” Dkt. 43 at 11 (emphasis in the original). Plaintiff also points out
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`that Business & Professions Code § 7451 “does not preclude companies like [defendant]
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`from electing to classify their drivers as employees if they so choose.” Id.
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`Second, plaintiff asserts that defendant lacks “undebatable evidence” proving that
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`Business & Professions Code § 7451 “was intended to affect [sic] a repeal of [Labor
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 11 of 40
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`Code § 2775] . . .” Id. at 11. In a footnote, plaintiff adds that defendant may not argue
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`that Business & Professions Code § 7451 “applies retroactively.” Id. at 11 n.2.
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`In its reply, defendant primarily focuses on the fourth Zipperer factor. Dkt. 44 at
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`10. First, defendant argues that Business & Professions Code § 7451 repealed Labor
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`Code § 2775 because the former section’s use of the prefatory clause “[n]otwithstanding
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`any other provision of law” shows that the “substance” of the former section sought to
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`“operate as an repeal.” Id. at 10-11.
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`Second, in a single paragraph, defendant characterizes plaintiff’s reliance on
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`Dynamex as an independent basis for his misclassification allegation as an “attempt[] to
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`split hairs.” Id. at 11. Defendant then summarily dismisses the doctrine of retroactivity as
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`“irrelevant” to its abatement argument. Id. at 12-13.
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`In their brief, Amici urge the court to reject defendant’s abatement argument for
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`multiple reasons. First, like plaintiff, Amici assert that Business & Professions Code §
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`7451 did not repeal Labor Code § 2775. 19-cv-8228, Dkt. 58-1 at 10-17.
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`More importantly, though, Amici expand on that argument. They add that
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`Business & Professions Code § 7451 did not repeal the wage orders interpreted and
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`relied on by the court in Dynamex when it articulated the ABC test for purposes of
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`classifying workers under California law. Id. at 14. To substantiate that assertion, Amici
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`address the conditions stated in Western Oil as necessary to show an implied repeal.
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`With respect to the first condition, Amici explain that defendant failed to offer any
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`evidence showing that California voters “intended to strip” drivers of their “right to wage
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`protections for work already performed while simultaneously guaranteeing wage
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`protections for future work.” Id. at 11. In relevant part, Amici criticize the 2020 California
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`Voter Guide as failing to even mention Labor Code § 2775. Id. at 11-12.
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`With respect to the second condition, Amici assert that defendant failed to show
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`that California Labor Code § 2775 has “no possibility of concurrent operation” with
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`Business & Professions Code § 7451 or the wage orders. Id. at 13-16. Amici explain
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`that Business & Professions Code § 7451 qualifies as a “specific statute” that, in some
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 12 of 40
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`circumstances, provides an “exception” to the “Labor Code and Wage Orders,” which
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`qualify as “general statutes upon which [drivers] rely for claims based on conduct before
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`[Business & Professions Code § 7451’s] passage.” Id. at 14. Amici elaborate that
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`Business & Professions Code § 7451 does not apply if a network company fails to satisfy
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`any one of its four conditions and that, in any event, such company may choose not to
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`comply with § 7451’s conditions and thus instead “be bound by the law created by
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`[California Labor Code § 2775].” Id.
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`Second, Amici assert that Business & Professions Code § 7451 does not abate
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`any authority underlying plaintiff’s misclassification allegation because that code contains
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`a general savings clause at Business & Professions Code § 4. Id. at 17. According to
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`Amici, Business & Professions Code § 12 extends § 4’s general savings clause to any
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`amendment to the Business & Professions Code, including, for example, § 7451. Id.
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`Third, Amici assert that, despite defendant’s contention, plaintiff’s claims are
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`premised in part on common law. Id. at 17-19. Amici acknowledge that Labor Code §
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`2775 appears statutory in nature and Dynamex interpreted California’s wage orders. Id.
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`at 18. Amici say, however, that both those authorities “merely clarified every worker’s
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`common law right to reasonable compensation for work performed.” Id. To support its
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`explanation, Amici cite Loehr v. Ventura Cty. Cmty. Coll. Dist., 147 Cal. App. 3d 1071
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`(1983) for the proposition that “earned but unpaid salary or wages are vested property
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`rights.” Id. Amici also cite Sims v. AT&T Mobility Servs. LLC, 955 F. Supp. 2d 1110
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`(E.D. Cal. 2013) for the proposition that “employees were entitled to recover unpaid
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`wages and overtime compensation at common law.” Id.
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`Fourth, Amici assert that Business & Professions Code § 7451 may not
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`“retroactively apply” to plaintiff’s misclassification allegation because such application
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`“would violate the Due Process Clause.” Id. at 19. According to Amici, plaintiff has a
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`“vested property right” in his “unpaid wages” and any “claim for those wages.” Id. Amici
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`suggest that, because a finding by this court that Business & Professions Code § 7451
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`retroactively applies would deprive plaintiff of his vested rights, the court should invoke
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`Case 4:20-cv-04062-PJH Document 54 Filed 06/21/21 Page 13 of 40
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`the doctrine of constitutional avoidance to “reject” such finding. Id. at 19-20.
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`In its response to Amici’s brief, defendant proffers six counterarguments. First,
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`defendant says that Amici’s brief does not address its abatement argument. Dkt. 50 at 2.
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`Second, defendant asserts that Amici mistakenly frame its abatement argument as
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`a retroactivity issue. Id. Defendant explains that the abatement doctrine focuses on
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`terminating a preexisting claim, whereas the retroactivity doctrine applies when a statute
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`imposes new liability for prior lawful actions. Id. To support that distinction, defendant
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`cites the California Supreme Court’s decision in Callet v. Alioto, 210 Cal. 65, 67 (1930)
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`(“Callet”). In that case, the California Supreme Court recognized the following principles:
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`It is too well settled to require citation of authority that in the
`absence of a clearly expressed intention to the contrary, every
`statute will be construed so as not to affect pending causes of
`action. Or, as the rule is generally stated, every statute will be
`construed to operate prospectively and will not be given a
`retrospective effect, unless the intention that it should have that
`effect is clearly expressed. It is also a general rule, subject to
`certain limitations not necessary to discuss here, that a cause
`of action or remedy dependent on a statute falls with a repeal
`of the statute, even after the action thereon is pending, in the
`absence of a saving clause in the repealing statute.
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` .
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` . .
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`The justification for this rule is that all statutory remedies are
`pursued with full real