Garibaldi v. Bank of Am. Corp.

• Decision Date: 15 January 2014
• Docket Number: No. C 13-02223 SI,C 13-02223 SI
• Citation: Garibaldi v. Bank of Am. Corp., No. C 13-02223 SI (N.D. Cal. Jan 15, 2014)
• Court: U.S. District Court — Northern District of California
• Parties: SHERI GARIBALDI, on behalf of herself and all others similarly situated, Plaintiff, v. BANK OF AMERICA CORP., Defendant.

SHERI GARIBALDI, on behalf of herself and all others similarly situated, Plaintiff, v. BANK OF AMERICA CORP., Defendant.

No. C 13-02223 SI

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: January 15, 2014

ORDER RE MOTION TO DISMISS

Currently before the Court is defendant's motion to dismiss and/or strike plaintiff's third amended complaint. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for resolution without oral argument and VACATES the hearing scheduled for January 17, 2014. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART the motion to dismiss.

BACKGROUND

The following facts are drawn from the operative complaint. From approximately 2005 until 2013, plaintiff Sheri Garibaldi worked as a part-time teller for defendant Bank of America, in California. Third Amended Complaint ("TAC") ¶¶ 1, 4. Although plaintiff was classified as a "20 hour" part-time employee, she was regularly scheduled to work more than 20 hours per week. Id. ¶ 9. As part of her wages received from defendant, plaintiff received paid time off. Id. ¶ 13. The amount of vacation employees could earn was accrued based upon their hours. Id. ¶ 15. Plaintiff believed that her accrued vacation time would be based upon the actual hours she worked, rather than her hours-based classification. Id. ¶¶ 15-16. Instead, plaintiff was awarded her time off based upon her classification as a "20 hour" part-time employee. Id. ¶ 16.

Defendant also provided a system of "floating holidays" whereby employees accrued additional paid time off if a bank holiday fell on a day an employee was not scheduled to work. Id. ¶ 19. Plaintiff believed that these "floating holidays" were the equivalent of additional vacation days. Id. However, if "floating holidays" were not used in the year they were earned, the "floating holidays" were lost. Id. Additionally, defendant provided employees with ten "occasional illness" days per year, two of which could be used for a purpose other than illness. Id. ¶ 22. If an employee's "occasional illness" days were not used, they were lost at the end of the year. Id.

During her employment, plaintiff worked both at defendant's Belmont, California branch, and its Foster City, California branch. Id. ¶ 23. On occasion, plaintiff would work in the morning at one branch, and in the afternoon at the other, causing her to travel during her lunch break. Id. ¶¶ 23-26. Plaintiff was not paid for her travel time. Id. ¶ 27.

Plaintiff filed her initial complaint against defendant in state court. On May 15, 2013, defendant removed the action to federal court. On June 5, 2013, plaintiff filed a first amended complaint. On September 24, 2013, plaintiff filed a second amended complaint. On October 25, 2013, plaintiff filed the operative third amended complaint on behalf of several putative classes and subclasses. Id. ¶ 39. These alleged classes include: (1) "the PTO Class" - all current and former part-time, non-exempt employees whose average hours worked or scheduled exceeded their hours-based classification; (2) "the Floating Holiday Class" - all current and former employees who accrued more floating holidays in one year than they actually used; and (3) "the Occasional Illness Class" - all current and former employees who accrued more occasional illness days in one year than they used.¹ Id. ¶ 39. Plaintiff brings ten causes of action: (1) breach of contract; (2) failure to pay accrued wages upon termination; (3) failure to pay overtime and/or straight-time pay; (4) missed meal breaks; (5) reimbursement of travel expenses; (6) waiting time penalties; (7) failure to provide accurate wage statements; (8) illegal form of paymentand unlawful coercion; (9) unfair business practices; and (10) a claim under California's Private Attorney General Act ("PAGA").

Defendant now moves the Court to dismiss plaintiff's first, second, sixth, seventh, eighth, ninth, and tenth causes of action. Defendant further moves to strike plaintiff's class allegations.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must 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). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a Defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 544, 555. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.

In reviewing a Rule 12(b)(6) motion, a district court must accept as true all facts alleged in the complaint, and draw all reasonable inferences in favor of the plaintiff. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, a district court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). As a general rule, the Court may not consider any materials beyond the pleadings when ruling on a Rule 12(b)(6) motion. Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001). However, pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of "matters of public record," such as prior court proceedings, without thereby transforming the motion into a motion for summary judgment. Id. at 688-89. If the Court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that thepleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).

DISCUSSION

1. First Cause of Action - Breach of Contract.

Plaintiff's first cause of action alleges a breach of contract based on defendant's alleged failure to provide accrual of paid time off based upon the actual hours worked, as well as defendant's policy of permitting "floating holidays" and "occasional illness days" to lapse if not used in the year they were earned. TAC ¶¶ 49-55. The contract plaintiff references is allegedly contained in defendant's "uniform policies." Id. ¶ 50. However, plaintiff does not attach the actual policies on which she relies.²

"To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage." Harris v. Rudin, Richman & Appel, 74 Cal. App. 4th 299, 307 (Cal. Ct. App. 1999). While a plaintiff need not attach a copy of the allegedly breached contract to the complaint, mere legal conclusions that a contract existed and was breached will be insufficient to survive a motion to dismiss. See Iqbal, 556 U.S. at 679.

The Court finds that plaintiff has not sufficiently alleged a breach of contract. Plaintiff's complaint repeatedly references defendant's "uniform policies" regarding accrual of paid time off. See, e.g., TAC ¶¶ 15, 19, 21, 22, 28. However, plaintiff has not provided sufficient factual information for the Court to determine what these "uniform policies" actually are. Because the Court cannot determine the substance of the contract plaintiff claims was breached, her breach of contract claim, as pled, cannot survive.

Plaintiff argues that it should be sufficient for her to plead the legal effect of the contract, and that she has done so here by alleging the essence of what the defendant promised her. See Opposition to Motion to Dismiss ("Opp'n") at 5. It is true that plaintiff has alleged the essence of what she believedshe was promised. However, from a reading of plaintiff's current complaint, it is impossible to determine the scope of the alleged contract, and therefore, impossible to determine whether plaintiff has properly alleged a breach.

Accordingly, the Court GRANTS defendant's motion to dismiss plaintiff's breach of contract claim, with leave to amend. If plaintiff chooses to amend this claim, she can avoid repetition of this problem by simply attaching a copy of the relevant "uniform policies" upon which her claim relies.

2. Second Cause of Action - Failure to Pay Accrued Wages Upon Termination.

Plaintiff's second cause of action alleges that defendant violated the California Labor Code by failing to pay its employees all accrued wages upon termination. TAC ¶¶ 56-64. Specifically, plaintiff alleges that, because the defendant calculated accrued vacation time based on its employees' hours-based classifications rather than their actual hours worked or scheduled, the employees were paid less than they should have been for accrued vacation time. Id. Additionally, plaintiff alleges that defendant violated the Labor Code by permitting "floating holidays" and "occasional illness days" to lapse if they were not used in the year in which they were earned. Id.

Defendant makes several arguments in support of dismissing plaintiff's second cause of action: (1) the California Labor Code claims are preempted by the National Bank Act of 1864 ("NBA"); (2) California law does not require employers to calculate vacation time according to actual hours worked rather than an hours-based classification system; and (3) California law...