United States District Court,
C.D. California.
Marco RODRIGUEZ and Allan Turnage
v.
OLD DOMINION FREIGHT LINE, INC.
No. CV 13–891 DSF (RZx).
Nov. 27, 2013.
Sang J. Park, Brent S. Buchsbaum, Gary R. Carlin, Laurel N. Haag, Ronald L. Zambrano, Law Offices of Carlin and Buchsbaum LLP, Long Beach, CA, Brian Richard Short, Graham S.P. Hollis, Grahamhollis APC, San Diego, CA, for Plaintiffs.
Bethany A. Pelliconi, Matthew Charles Kane, Sabrina A. Beldner, Sylvia Jihae Kim, McGuire Woods LLP, Los Angeles, CA, for Defendant.
Proceedings: (In Chambers) Order GRANTING IN PART and DENYING IN PART Defendant’s Motion to Dismiss (Docket No. 62), and DENYING Defendant’s Motion to Strike (Docket No. 63)
DALE S. FISCHER, District Judge.
*1 Debra Plato, Deputy Clerk.
On August 29, 2013, Marco Rodriguez and Allan Turnage filed a Consolidated Complaint against Defendant Old Dominion Freight Line, Inc. (ODFL). The Complaint alleges nine class claims against ODFL: (1) failure to provide meal breaks; (2) failure to provide rest breaks; (3) failure to pay regular and minimum wages; (4) failure to timely pay all wages; (5) failure to provide accurate itemized wage statements; (6) failure to provide and maintain accurate records; (7) failure to allow inspection of personnel file and records; (8) violation of California Business and Professions Code § 17200 et seq. (UCL); and (9) a representative action under California’s Private Attorney General Act (PAGA). Additionally, Rodriguez alleges four individual claims: (10) wrongful termination in violation of public policy; (11) retaliation in violation of public policy; (12) intentional infliction of emotional distress (IIED); and (13) defamation. (Docket No. 51.) ODFL filed a Motion to Dismiss (MTD), (Docket No. 62), and Motion to Strike (MTS), (Docket No. 63). For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART ODFL’s MTD. The Court DENIES the MTS as moot.
I. INTRODUCTION
ODFL is a federally-regulated shipping carrier whose core business segment is “Less than Truckload” (LTL) shipping.FN1 This business generally consists of the transportation of relatively small packages and freight. (Compl.¶ 13.) Rodriguez and Turnage were formerly employed by ODFL as truck drivers. (Id. ¶¶ 3–4.)
FN1. The Complaint suggests that ODFL is federally-regulated; ODFL’s Request for Judicial Notice (RJN) provides evidence that it is subject to federal regulation. See RJN Exh. B (ODFL’s Form 10–K SEC filing for the 2012 fiscal year) at 8, RJN Exh. C (ODFL’s Certificate of Public Convenience and Necessity), and RJN Exh. D. ODFL filed two RJNs in support of its MTD, seeking judicial notice of various publicly-filed documents. (See Docket Nos. 62 and 65 .) The Court grants ODFL’s RJNs, as the authenticity of these documents is capable of accurate and ready determination by sources whose accuracy cannot reasonably be questioned. Therefore, to the extent necessary to rule on the pending motion, the Court has considered the exhibits to ODFL’s RJNs.
Rodriguez worked as a “Pick–Up and Delivery” driver, a non-exempt and hourly position, from March 2010 to January 5, 2012. (Id. ¶ 3.) Rodriguez earned $18.85 per hour at the time of his termination. (Id.) During his time with ODFL, Rodriguez was employed in ODFL’s LTL shipping business. (Id. ¶ 14.) Turnage was a “Pick–Up and Delivery” driver at ODFL’s Oakland facility from about 2009 until he was terminated on December 22, 2011. (Id. ¶ 15.) During his employment with ODFL, Turnage delivered various materials, including hazardous materials, on routes within California. (Id.) Rodriguez and Turnage allege claims on behalf of a proposed class of “All current and/or former non-exempt employees that worked as a Pick–Up and Delivery driver for Defendants in California within four years prior to the filing of this Complaint.” (Id. ¶ 41.)
Plaintiffs allege that as a result of both federal regulations and ODFL’s policies, Plaintiffs and class members were never allowed to leave their trucks for unattended meal or rest breaks. (Id. ¶¶ 16–18.) Despite this, ODFL required Plaintiffs and class members to “clock in” and “clock out” for meal periods on their assigned handheld devices immediately after starting their shifts. (Id. ¶ 26.) For example, an employee working a 7:00 a.m. to 7:00 p.m. shift would be required to fraudulently indicate that he took his meal break from 7:30 a.m. to 8:00 a.m. (Id.)
*2 Rodriguez individually alleges that on average he worked 50 hours per week and that he regularly worked 60 hours per week. (Id. ¶ 28.) ODFL classified Rodriguez as “part-time” and did not provide him with benefits such as health insurance. (Id.) Rodriguez claims that he complained to ODFL’s plant manager, his direct supervisor, “Willie,” about ODFL’s failure to provide meal periods and rest breaks, as well as his designation as a “part-time” employee. (Id. ¶ 29.) Rodriguez made his first complaint to “Willie” in April 2010, and last complained in late 2011.(Id.) Although “Willie” promised to “look into it,” he never did so. (Id.)
Rodriguez was terminated on January 5, 2012 for “poor performance.” (Id. ¶ 31.) Rodriguez claims the reasons for his dismissal were pretextual and that he was terminated in retaliation for complaining about ODFL’s failure to provide meal and rest breaks. (Id. ¶¶ 31–32.) Rodriguez further claims that he was denied subsequent employment as a result of ODFL telling his prospective employers that he was terminated for “poor performance.” (Id. ¶ 36.) Specifically, Rodriguez claims that he received an offer of employment that was rescinded due to ODFL’s statements about his performance. (Id.)
II. LEGAL STANDARD
“Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Specific facts are not necessary; the statement need only give the defendant fair notice of what the … claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (alteration in original) (internal quotation marks omitted). But Rule 8 “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Rule12(b)(6) allows an attack on the pleadings for failure to state a claim upon which relief can be granted. “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson, 551 U.S. at 94. However, allegations contradicted by matters properly subject to judicial notice or by exhibit need not be accepted as true, Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001), and a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (alteration in original) (internal quotation marks omitted). A complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. This means that the complaint must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
*3 Ruling on a motion to dismiss is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not show [n]—that the pleader is entitled to relief.” Id. at 1950 (alteration in original) (citation and internal quotation marks omitted).
Matters properly the subject of judicial notice may be considered in ruling on a Rule 12(b)(6) motion. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994). A district court may consider “[r]ecords and reports of administrative bodies,” id., and other “matters of public record outside the proceedings,” such as motions filed in other cases. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986).
“Normally, when a viable case may be pled, a district court should freely grant leave to amend.” Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011). Leave to amend should be granted even if the plaintiff did not request leave, unless it is clear that the complaint cannot be cured by the allegation of different or additional facts. Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995).
III. DISCUSSION
A. Plaintiffs Were Not Required to Exhaust Administrative Remedies Under California Labor Code §§ 98 and 98.7
ODFL argues that Plaintiffs’ claims should be dismissed in their entirety for failure to exhaust administrative remedies pursuant to California Labor Code §§ 98 and 98.7. Under § 98.7, “[a]ny person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation.” Cal. Lab.Code § 98.7(a) (emphasis added). ODFL relies on two California cases that require administrative exhaustion of claims for retaliation under California’s whistleblower statutes. In Campbell v. Regents of the Univ. of California, 35 Cal.4th 311, 317, 25 Cal.Rptr.3d 320, 106 P.3d 976 (2005), the California Supreme Court analyzed whether an employee “must exhaust internal administrative remedies before filing suit in superior court for retaliatory termination under … ‘whistleblower’ statutes.” In MacDonald v. California, 219 Cal.App.4th 67, 68, 161 Cal.Rptr.3d 520 (2013), the California Court of Appeal also narrowly defined the issue presented as “whether an employee must exhaust the administrative remedy set forth in Labor Code section 98 .7 before filing suit in superior court for retaliatory discharge in violation of sections 1102.5 and 6310.” These decisions, which are expressly tethered to the plaintiffs’ whistleblower claims, do not mandate that an employee file a complaint with the Labor Commissioner before bringing suit for any and all employment claims.
As noted by the court in Lloyd v. Cnty. of L.A., 172 Cal.App.4th 320, 332, 90 Cal.Rptr.3d 872 (2009), such a requirement would “fl[y] in the face of the concerns underlying the Labor Code Private Attorneys General Act of 2004 (PAG Act)…. The PAG Act’s approach, enlisting aggrieved employees to augment the Labor Commissioner’s enforcement of state labor law, undermines the notion that Labor code section 98 .7 compels exhaustion of administrative remedies with the Labor Commissioner.”
*4 As the cases relied on by ODFL are inapposite, and especially in light of the clear language in California Labor Code § 98.7(a), the Court declines to dismiss any of Plaintiffs’ claims based on a purported exhaustion requirement.
B. Plaintiffs’ Meal and Rest Break Claims are Preempted by FAAAA
ODFL also argues that Plaintiffs’ state law claims of meal and rest break violations are preempted by the Federal Aviation Administration Authorization Act (FAAAA), 49 U.S.C. § 14501(c)(1). The Court agrees.
Congress enacted the FAAAA to “help[ ] assure transportation rates, routes, and services that reflect maximum reliance on competitive market forces, thereby stimulating efficiency, innovation, and low prices, as well as variety and quality.” Rowe v. New Hampshire Motor Transp. Ass’n., 552 U.S. 365, 361 (2008) (internal quotations and citations omitted). To achieve this end, the FAAAA specifically commands that “a State … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … with respect to the transportation of property. 49 U.S.C. § 14501(c)(1).FN2
FN2. A “motor carrier” is defined as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). Plaintiffs do not dispute that ODFL qualifies as a “motor carrier” under FAAAA. Indeed, the Complaint acknowledges that ODFL is required to be “in compliance with the federal regulations under the FAAAA.” (Compl.¶¶ 24–25.)
The Supreme Court has identified four guiding principles in evaluating whether a state provision is preempted by the FAAAA:
(1) that [s]tate enforcement actions having a connection with, or reference to carrier rates, routes, or services are pre-empted;
(2) that such pre-emption may occur even if a state law’s effect on rates, routes or services is only indirect;
(3) that, in respect to pre-emption, it makes no difference whether a state law is “consistent” or “inconsistent” with federal regulation; and
(4) that pre-emption occurs at least where state laws have a “significant impact” related to Congress’ deregulatory and pre-emption-related objectives.
Rowe, 552 U.S. at 370–71 (emphasis added) (citations omitted) (internal quotation marks omitted). The Ninth Circuit has further clarified that in “borderline” cases, “the proper inquiry is whether the provision, directly or indirectly, binds the … carrier to a particular price, route or service and thereby interferes with competitive market forces within the … industry.” Am. Trucking Ass’ns, Inc. v. City of L.A., 660 F.3d 384, 397 (9th Cir.2011) (overruled on other grounds by Am. Trucking Ass’ns, Inc. v. City of L.A., ––– U.S. ––––, 133 S.Ct. 2096, 186 L.Ed.2d 177 (2013).
Neither the Supreme Court nor the Ninth Circuit has directly addressed this issue.FN3 This Court joins a number of district courts in this circuit that have held that the FAAAA preempts California’s meal and rest break laws. E.g., Dilts v. Penske Logistics LLC, 819 F.Supp.2d 1109 (S.D.Cal. Oct.19, 2011); Ortega v. J.B. Hunt Transport, Inc., 2013 WL 5933889 (C.D.Cal. Oct.2, 2013); Burnham v. Ruan Transp., 2013 WL 4564496, *5 (C.D.Cal. Aug.16, 2013) (listing a number of prior cases that have followed the reasoning in Dilts to conclude that FAAAA preempts California’s meal and rest break laws); Esquivel v. Vistar Corp., 2012 WL 516094 (C.D.Cal. Feb.8, 2012).
FN3. Plaintiffs’ Opposition asserts that the Ninth Circuit has “held that the [sic] California’s wage laws are not preempted by the FAAAA.” (Opposition at 6.) However, the case Plaintiffs refer to, Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184 (9th Cir.1998), specifically analyzed whether the FAAAA preempted California’s Prevailing Wage Law (CPWL), which “required contractors and subcontractors who are awarded public works contracts to pay their workers ‘not less than the general prevailing rate … for work of a similar character in the locality in which the public work is performed.” Id. at 1186 (internal quotations and citations omitted). The Ninth Circuit did not hold that the FAAAA preempted all of California’s wage and hour laws. As noted by the court in Dilts v. Penske Logistics LLC, 819 F.Supp.2d 1109, 1122 (S.D.Cal. Oct.19, 2011), a case that Plaintiffs assert will “resolve the disparity among the different district courts” on FAAAA preemption, (Opposition at 5 n. 2), it is important to distinguish meal and rest break laws from other wage laws.
*5 Plaintiffs argue that California’s meal and rest break laws fall within the “safety exception” of the FAAAA, articulated at 49 USC § 14501(c)(2). However, as Plaintiffs acknowledge, “[t]o fall within § 14501(c)(2)’s ‘safety exception,’ a law must be ‘genuinely responsive to safety concerns.’ “ (Opposition at 11 (quoting City of Columbus v. Ours Garage and Wrecker Serv., Inc., 536 U.S. 424, 442, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002).) The Ninth Circuit has clarified that this is a narrow exception, applicable only to provisions that are “intended to be, and [are], genuinely responsive to motor vehicle safety.” Am. Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1055 (9th Cir.2009). Although California’s meal and rest break requirements may indeed assist in “reducing driver fatigue,” (Opposition at 11), they are not “genuinely responsive to motor vehicle safety,” and thus, do not qualify for the FAAAA’s safety exception.
The Court finds that California’s meal and rest break requirements relate to the price, route, and service of ODFL, and are thus preempted by the FAAAA. Because the Court finds the FAAAA preemption applicable here, it will not discuss ODFL’s alternate arguments that California’s meal and rest break requirements are also preempted by regulations by the Federal Motor Carrier Safety Administration.
C. Specific Claims in Plaintiffs’ Complaint
1. Failure to Provide Meal Breaks
Plaintiffs’ meal break claims are preempted by the FAAAA. Therefore, Plaintiffs’ first claim is dismissed with prejudice.
2. Failure to Provide Rest Breaks
Plaintiffs’ rest break claims are preempted by the FAAAA. Therefore, Plaintiffs’ second claim is dismissed with prejudice.
3. Failure to Pay Regular and Minimum Wages
Plaintiffs’ third claim for failure to pay regular and minimum wages is based entirely on their failed meal break claim. Specifically, Plaintiffs allege that ODFL paid class members less than minimum wages “when it required them to work during meal breaks, and when it failed to pay proper compensation for all hours worked, including time worked during missed and/or interrupted meal and/or break periods.” (Compl.¶ 71.) Plaintiffs provide no other factual support for a minimum wage claim. Because it is possible for Plaintiffs to amend their Complaint to allege facts to support an alternate theory for a viable minimum wage claim, the Court dismisses this claim without prejudice.
4. Failure to Pay Wages on a Timely Basis
Plaintiffs provide scant factual support for their fourth claim. They state in cursory fashion that employees did not receive minimum and regular wages, as well as meal and rest premiums, during class members’ employment or on termination. (Compl.¶¶ 78, 80.)
As noted above, Plaintiffs’ claim for failure to pay minimum and regular wages is predicated entirely on their failed meal break claim. Therefore, it cannot support a claim for § 203 penalties. Additionally, the Court has already found that because “ Kirby[ v. Immoos Fire Prot., Inc., 53 Cal.4th 1244, 140 Cal.Rptr.3d 173, 274 P.3d 1160 (2012) ] makes clear that an employer who owes an employee a premium wage under § 226.7 is not also liable for a violation of § 203,” Rodriguez cannot maintain a § 203 claim for meal and rest break premiums as a matter of law. (Court’s June 16, 2013 Order re Motion to Dismiss.) This applies equally to Plaintiffs’ operative Complaint.
*6 Although it is possible for Plaintiffs to plead a set of facts to support a different basis for a § 203 claim, Plaintiffs have failed to do so. Therefore, the Court dismisses this claim without prejudice.
5. Failure to Provide and Maintain Accurate Itemized Wages Statements and Records
Labor Code § 226(a) “sets forth nine itemized requirements for a wage statement.” Price v. Starbucks Corp., 192 Cal.App.4th 1136, 1142 n. 4, 122 Cal.Rptr.3d 174 (2011). “To recover damages under section 226, subdivision (e), an employee must suffer injury as a result of a knowing and intentional failure by an employer to comply with the statute.” Id. at 1142, 122 Cal.Rptr.3d 174 (footnote omitted).
Plaintiffs plead that ODFL’s wage statements failed to record “all regular time worked, regular wages earned, all meal and rest premium wages earned, all wages earned including minimum and regular wages, which resulted in inaccurate wage statements.” As a direct result, Plaintiffs allege they suffered “lost wages, lost interest on such wages, and expenses and attorney fees in seeking to compel Defendants [sic] to fully perform its obligations, including attempting to decipher who exactly is the legal employer entity.”
ODFL initially asserted that Turnage’s individual § 226(a) claim—in its entirety—is barred by the statute of limitations. This is incorrect. While a request for penalties under § 226(e) is subject to a one-year statute of limitations, see Reinhardt v. Gemini Motor Transport, 869 F.Supp.2d 1158, 1169–70 (E.D.Cal. Apr.25, 2012), Plaintiffs seek “all available remedies … including, but not limited to any and all wages due, actual damages … monies, interest, attorneys’ fees, costs and injunctive relief to the extent permitted by law….” (Compl.¶ 94.) Therefore, although Turnage filed his initial complaint more than one year after his alleged termination, (compare Compl. ¶ 4 and MTD at Ex. P), he is not foreclosed from seeking other forms of relief for his § 226(a) claim.
Plaintiffs’ § 226(a) claim, however, is insufficient to survive the pleading requirements of Rule 8. Plaintiffs’ fifth claim merely parrots the statute and “tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (alteration in original) (internal quotation marks omitted). It is unclear from the Complaint whether Plaintiffs’ § 226(a) claim is predicated entirely on their failed meal and rest break claims, or whether ODFL’s wage statements omitted items other than the “regular time worked” and “regular wages earned” tied to the unwarranted meal and rest periods.
The Court dismisses Turnage’s individual § 226(a) claim for penalties with prejudice. The Court dismisses the remainder of Plaintiffs’ fifth claim without prejudice, as it is possible that Plaintiffs can amend their Complaint to include facts sufficient to state a § 226(a) claim.
6. Failure to Record and Maintain Accurate Records
Plaintiffs’ sixth claim for failure to record and maintain accurate records is also based entirely on their failed meal and rest break claim. Specifically, Plaintiffs allege that “Defendants have failed to have Plaintiffs, Class members and Represented Employees record their meal and rest periods as described by the ‘Records’ section of 9–2001 Wage Order, therefore resulting in a violation.” (Compl.¶ 98.) This, in turn, resulted in a failure to maintain accurate records. (Id. ¶ 99.) Because the only “inaccuracy” noted by Plaintiffs is that of the failure to record break periods that were not required, and apparently not taken, Plaintiffs’ sixth claim must be dismissed. As it is possible for Plaintiffs to plead an alternate basis for a viable record-keeping claim, the Court dismisses this claim without prejudice.
7. Failure to Allow Inspection of Personnel File and Records
*7 ODFL’s sole challenge to Plaintiffs’ seventh claim is that Plaintiffs failed to exhaust administrative remedies, pursuant to California Labor Code § § 98 and 98.7. As discussed above, the Court finds that there is no such requirement. Plaintiffs adequately plead that Turnage formally asked to inspect his personnel records on December 7, 2012, that ODFL failed to allow inspection of those records, and that ODFL systematically refuses to allow class members to inspect personnel records, in violation of California Labor Code §§ 1198.5(a) and 226(b).
ODFL’s MTD is DENIED as to this claim.
8. UCL Claims
California’s Unfair Competition Law (UCL) prohibits any “unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof.Code § 17200. “A business act or practice may violate the UCL if it is either unlawful, unfair, or fraudulent. Each of these three adjectives captures a separate and distinct theory of liability.” Rubio v. Capital One Bank, 613 F.3d 1195, 1203 (9th Cir.2010) (citations omitted) (internal quotation marks omitted). To state a claim under the “unlawful” prong, Plaintiffs must establish a violation of another law. Berryman v. Merit Prop. Mgmt., Inc., 152 Cal.App.4th 1544, 1554, 62 Cal.Rptr.3d 177 (2007) (“[A] violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.”).
Plaintiffs’ UCL Claim is based entirely on their preceding allegations of unlawful conduct. (Compl.¶ 110.) Without alleging any additional facts to support their UCL claim, Plaintiffs provide an extensive list of California Labor Code sections that were allegedly violated: §§ 201, 202, 203, 204(a), 204(b), 210, 218.5, 218.6, 223, 225.5, 226, 226(a), 226.3, 226.7, 512, 558, 1174, 1174.5, 1194, 1197, 1198, and 2699 et seq. (Compl.¶ 111.)
As Plaintiffs’ first six claims have been dismissed above, they cannot serve as the basis of a UCL claim. While Plaintiffs’ surviving seventh claim for failure to allow inspection of personnel file and records could support a UCL claim, Plaintiffs did not include §§ 1198.5(a) and 226(b) in their extensive list of code sections. Given the breadth of Plaintiffs’ code recitation and lack of underlying supporting facts, the Court will not pencil in a basis for Plaintiffs’ UCL claim that they appear to have chosen not to rely on.
Plaintiffs’ UCL claim is dismissed in its entirety without prejudice.
9. PAGA Claim
Under California’s Private Attorneys General Act (PAGA), an “aggrieved employee” may bring a civil action and on “behalf of himself or herself or other current or former employees” to recover civil penalties for Labor Code violations. Cal. Lab.Code § 2699. Before bringing such a civil action, an employee must comply with the administrative prerequisites under § 2699.3. If the action is based on violations of provisions listed in § 2699.5, the employee must provide written notice to the Labor and Workforce Development Agency (LWDA) with the facts and theories supporting the alleged violation. Arias v.Super. Ct., 46 Cal.4th 969, 981, 95 Cal.Rptr.3d 588, 209 P.3d 923 (2009) (citing § 2699.3(a)). While an employee may bring a PAGA action for violations other than those listed in § 2699.5, he must not only provide notice to the LWDA, but also allow the employer an opportunity to cure the alleged violation. Cal. Lab.Code § 2699.3(c).
*8 Although devoid of any factual support, Plaintiffs’ ninth claim for civil penalties pursuant to PAGA appears to be wholly derivative of their failed meal and rest break claims, as Plaintiffs merely “re-allege and incorporate by reference” the preceding paragraphs of their Complaint. (Compl.¶ 119.) Plaintiffs allege that Turnage exhausted his administrative remedies, as he filed a letter with the LWDA on December 7, 2012 and did not receive any notice of intent to investigate from the LWDA within 33 calendar days. (Compl.¶ 122.) Plaintiffs do not allege any attempt or failure by ODFL to cure the alleged violations. Plaintiffs further specify that § 2699 imposes penalties for violations of Labor Code §§ 201, 202, 203, 204, 225, 226.7, 512, 1174, and 1198, or those relied on in the first six claims within their Complaint. As those claims have all been dismissed, they cannot serve as the basis of Plaintiffs’ PAGA claim. Plaintiffs’ sole surviving recordkeeping claim cannot be sustained, as §§ 1198.5(a) and 226(b) are not included in the expansive list of Labor Code sections within § 2699.5. Plaintiffs’ PAGA Claim is dismissed without prejudice.
10. Rodriguez’s Individual Claim for Wrongful Termination in Violation of Public Policy
ODFL’s sole challenge to Plaintiffs’ tenth claim is that Plaintiffs failed to exhaust administrative remedies, pursuant to California Labor Code § § 98 and 98.7. As discussed above, the Court finds that there is no such requirement. Because ODFL does not present any additional grounds for dismissal, the Court will not dismiss this claim.
ODFL’s MTD is DENIED as to this claim.
11. Rodriguez’s Individual Claim for Retaliation in Violation of Public Policy
ODFL’s sole challenge to Plaintiffs’ eleventh claim is that Plaintiffs failed to exhaust administrative remedies, pursuant to California Labor Code § § 98 and 98.7. As discussed above, the Court finds that there is no such requirement. Because ODFL does not present any additional grounds for dismissal, the Court will not dismiss this claim.
ODFL’s MTD is DENIED as to this claim.
12. Rodriguez’s Individual Claim for Intentional Infliction of Emotional Distress (IIED)
ODFL’s sole challenge to Plaintiffs’ twelfth claim is that Plaintiffs failed to exhaust administrative remedies, pursuant to California Labor Code § § 98 and 98.7. As discussed above, the Court finds that there is no such requirement. Because ODFL does not present any additional grounds for dismissal, the Court will not dismiss this claim.
ODFL’s MTD is DENIED as to this claim.
13. Rodriguez’s Individual Claim for Defamation
“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” Smith v. Maldonado, 72 Cal.App.4th 637, 645, 85 Cal.Rptr.2d 397 (1999) (citations omitted). “Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made.” Id. “Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” Id. (quotation marks omitted) (citing Cunningham v. Simpson, 1 Cal.3d 301, 306, 81 Cal.Rptr. 855, 461 P.2d 39 (1969)).
*9 “Under the ‘common-interest privilege,’ codified in California in Civil Code section 47, subdivision (c) … a defendant who makes a statement to others on a matter of common interest is immunized from liability for defamation so long as the statement is made ‘without malice.’ ” Lundquist v. Reusser, 7 Cal.4th 1193, 1196, 31 Cal.Rptr.2d 776, 875 P.2d 1279 (1994) (footnote omitted).
[I]n enacting section 47(c), the Legislature intended to codify without change the common law common-interest privilege. At common law, that privilege embodied a two-step analysis, under which the defendant bore the initial burden of demonstrating that the allegedly defamatory communication was made upon a privileged occasion, and the plaintiff then bore the burden of proving that defendant had made the statement with malice.
Id. at 1208, 31 Cal.Rptr.2d 776, 875 P.2d 1279. “Courts have consistently interpreted section 47, subdivision (c) to apply in the employment context.” Noel v. River Hills Wilsons, Inc., 113 Cal.App.4th 1363, 1369, 7 Cal.Rptr.3d 216 (2003) (citation omitted). Further, the plain text of § 47(c) makes clear that it “applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.” Additionally, an employer’s statement accusing an employee of “poor performance” is “clearly a statement of opinion,” and is not defamatory. Gould v. Maryland Sound Indus., Inc., 31 Cal.App.4th 1137, 1153–54, 37 Cal.Rptr.2d 718 (1995).
Rodriguez’s defamation claim appears to concern (1) statements regarding “poor performance” made to a prospective employer and an administrative law judge at an unemployment benefits hearing, (Compl.¶¶ 153, 156), as well as a “false” representation that Rodriguez “voluntarily quit … due to job satisfaction.” (Id. ¶ 155, 37 Cal.Rptr.2d 718.) First, as noted in Gould, accusations of “poor performance” are not defamatory. Second, Section 47(c) clearly applies to Rodriguez’s defamation claim regarding statements to a prospective employer. As he has failed to allege that the statements were made with malice, his claim is deficient. Finally, to the extent that Rodriguez attempts to base his defamation claim on ODFL’s alleged “false representation” that he voluntarily quit, this is not a statement that “has a natural tendency to injure.” See Smith, 72 Cal.App.4th at 645, 85 Cal.Rptr.2d 397. Arguably, voluntarily quitting employment is a far more favorable action than being terminated.
Rodriguez’s defamation claim is dismissed without prejudice.
D. Motion to Strike
Because the sections challenged in ODFL’s MTS have been dismissed, the MTS is DENIED as MOOT.
IV. CONCLUSION
The motion to dismiss is GRANTED IN PART and DENIED IN PART. The Complaint is dismissed with leave to amend consistent with this order. An amended complaint must be filed and served no later than January 6, 2014. Failure to file by that date will waive the right to do so. The Court does not grant leave to add new defendants or new claims. Leave to add defendants or new claims must be sought by a separate, properly noticed motion. Defendant’s response will be due January 27, 2014.
*10 IT IS SO ORDERED.
