1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ANTONIO JONES, Case No. 20-cv-04345-BLF

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS

10 TRACFONE WIRELESS, INC., et al., [Re: ECF 28] 11 Defendants.

12 13 Plaintiff Antonio Jones brings this purported class action complaint against Defendants 14 Tracfone Wireless and 20/20 Communications, Inc., (collectively “Defendants”) for 15 misclassifying him as an independent contractor, and Mr. Jones seeks compensation in the form of 16 unpaid wages, unpaid overtime, and uncompensated meal and rest breaks. See Third Amend. 17 Compl. (“TAC”), ECF 27. Defendants have filed a motion to dismiss. See Mot., ECF 28. Mr. 18 Jones filed a brief in opposition. See Opp’n, ECF 33. For the following reasons, this motion is 19 GRANTED. 20 Defendants argue that all claims should be dismissed because Mr. Jones has failed to 21 adequately plead an employment relationship with either Defendant. Mot. 6-8. The Court agrees. 22 As a threshold issue, Mr. Jones has failed to plead facts establishing what, exactly, he did for 23 either Defendant. There are no facts demonstrating that he was misclassified as an independent 24 contractor. See Dynamex Operations W. v. Superior Court,

(Cal. 2018) 25 (adopting ABC test to differentiate between independent contractors and employees). For this 26 reason alone, all of the claims fail. The Court will grant Mr. Jones leave to amend to cure this 27 deficiency in the complaint. Mr. Jones needs to separately plead facts against each Defendant 1 and that the conduct underlying the claims is attributable to each Defendant. 2 Defendants also seek dismissal on Mr. Jones’s alternate theory of liability of Defendants as 3 “client employers” under California Labor Code Section 2810.3. Mot. 8-11. The Court agrees with 4 Defendants that Mr. Jones failed to provide the requisite 30 days’ notice to his alleged client 5 employers as required by Labor Code Section 2801.3. By Mr. Jones’s own admission, he provided 6 notice in June 2020, more than three months after he filed his second amended complaint seeking 7 recovery for payment of wages. Opp’n 8. The Court finds the statute to be clear and unambiguous 8 in requiring notice “prior to filing a civil action” premised on “violations covered by” section 9 2810.3. See Parsittie v. Schneider Logistics, Inc., No. CV193981MWFAFMX,

2120003, at *12 (C.D. Cal. Apr. 3, 2020) (interpreting section 2801.3 the same way). Since Mr. 11 Jones did not provide 30 days’ pre-suit notice, his claims under Section 2810.3 fail, and because 12 no amendment could cure the notice deficiency, allegations under Section 2810.3 are DISMISSED 13 WITH PREJUDICE. 14 As to Mr. Jones’s first and second claims for unpaid minimum wage and unpaid overtime, 15 Mr. Jones must plead facts describing his workday and workweek. The current complaint contains 16 no factual allegations establishing that Mr. Jones worked enough hours to qualify for any 17 additional payment. See Landers v. Quality Communications, Inc.,

(9th Cir. 18 2014) (“[A]t a minimum the plaintiff must allege at least one workweek when he worked in excess 19 of forty hours and was not paid for the excess in that workweek, or was not paid minimum 20 wages.”). The Court agrees with Mr. Jones that Landers does not require a plaintiff to identify an 21 exact calendar week or a particular instance of denied minimum wage and that the allegations 22 need only give rise to a plausible inference that there was such an instance. The current complaint, 23 though, does not give rise to such an inference. 24 Mr. Jones’s third and fourth claims for failure to provide sufficient rest breaks and meal 25 periods also lack a factual basis, and the Court advises Mr. Jones to plead some facts indicating 26 why he was prevented from taking these breaks. Similar additional factual pleadings are needed to 27 establish Mr. Jones’s seventh claim for failure to reimburse expenses. Mr. Jones needs to establish 1 to provide accurate wage statements) and sixth claim (waiting time penalties) fail as derivatives of 2 || the first four claims. 3 Mr. Jones’s eighth claim for violation of California’s Unfair Competition Law fails 4 || because he has failed to plead that he lacks an adequate remedy at law. See Sonner v. Premier 5 || Nutrition Corp.,

(9th Cir. 2020) (holding that a plaintiff must establish that he 6 || lacks an adequate remedy at law before securing equitable restitution for past harm under the 7 || UCL). 8 As for Mr. Jones’s ninth claim under California’s Private Attorneys General Act 9 (“PAGA”), it fails as a derivative claim as well. On amendment, Mr. Jones needs to explain who 10 || constitutes an aggrieved employee and establish that he has properly exhausted this claim under ll

(a)(1) and that it does not violate the one-year statute of limitations under 12

(a). 5 13 All of Mr. Jones’s claims are dismissed with leave to amend except his allegations under 14 California Labor Code Section 2810.3, which are dismissed without leave to amend. Mr. Jones’s 3 15 amended complaint is due no later than March 5, 2021. 16

= 17 IT IS SO ORDERED. 18 19 || Dated: February 4, 2021 kom Lh han tn) 20 WALES BETH LABSON FREEMAN 21 United States District Judge 22 23 24 25 26 27 28