Ulloa II v. Securitas Security Services USA, Inc.

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA MICHAEL ANGEL ULLOA II, Case No. 23-cv-01752-DMR 8 Plaintiff, ORDER ON MOTION TO DISMISS 9 v. FIRST AMENDED COMPLAINT 10 SECURITAS SECURITY SERVICES Re: Dkt. No. 25 USA, INC., Defendant.

13 In this putative class action, Plaintiff Michael Angel Ulloa II sues his former employer Securitas Security Services USA, Inc. alleging wage and hour violations under California law.

15 Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff’s first amended complaint (FAC). [Docket No. 25.] This matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the following reasons, the motion is denied.

18 I. FACTUAL AND PROCEDURAL BACKGROUND 19 Defendant employed Plaintiff as a “Flex Officer” from May 2022 to October 2022. As a Flex Officer, Plaintiff filled in for security officers on leave, provided security for special events, and temporarily staffed new accounts. [Docket No. 24 (FAC) ¶ 4.]

22 Plaintiff asserts the following claims in the FAC: 1) failure to provide required meal periods in violation of California Labor Code sections 226.7 and 512; 2) failure to provide required rest periods in violation of California Labor Code sections 226.7 and 512; 3) failure to pay overtime wages in violation of California Labor Code sections 510 and 1194; 4) failure to pay minimum wages in violation of California Labor Code sections 1194 and 1197; 5) failure to pay wages due upon termination in violation of California Labor Code sections 201-203; 6) failure to failure to indemnify employees for necessary expenditures in violation of California Labor Code section 2802; 8) unfair and unlawful business practices in violation of California Business & Professions Code section 17200 et seq. (“UCL”); and 9) civil penalties under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code sections 2698-2699.

5 Plaintiff seeks to represent a class of “all current and former non-exempt employees of Defendant[ ] in the State of California at any time within the period beginning four (4) years prior to the filing of this action and ending at the time this action settles or the class is certified[.]” FAC ¶ 6.

9 Plaintiff filed the complaint in state court on February 14, 2023. Defendant filed an answer to the complaint on April 7, 2023. NOR ¶¶ 3, 4, Exs. 1, 2. Defendant removed the action to this court on April 12, 2023 and moved pursuant to Rule 12(b)(6) to dismiss the complaint. The court converted the motion to a Rule 12(c) motion for judgment on the pleadings and granted the motion in August 2023. Ulloa v. Securitas Sec. Servs. USA, Inc., No. 23-CV-01752-DMR, 2023 14 WL 5538276, at *3 (N.D. Cal. Aug. 28, 2023). In relevant part, the court dismissed Plaintiff’s claims with leave to amend and dismissed his request for injunctive relief with prejudice. Id. Plaintiff timely filed the FAC and Defendant again moves to dismiss.

17 II. LEGAL STANDARD 18 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

20 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted), and may dismiss a claim “only where there is no cognizable legal theory” or there is an absence of “sufficient factual matter to state a facially plausible claim to relief.”

24 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) (quotation marks omitted). A claim has facial plausibility when a plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the must demonstrate “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. 554, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). “Taken together, Iqbal and Twombly require well-pleaded facts, not legal conclusions, that plausibly give rise to an entitlement to relief.” Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir. 2021) (quotations and internal citations omitted).

8 As a general rule, a court may not consider “any material beyond the pleadings” when ruling on a Rule 12(b)(6) motion. Lee, 250 F.3d at 688 (citation and quotation marks omitted).

10 However, “a court may take judicial notice of ‘matters of public record,’” id. at 689 (citing Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may also consider “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading,” without converting a motion to dismiss under Rule 12(b)(6) into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith, 307 F.3d at 1125-26. The court need not accept as true allegations that contradict facts which may be judicially noticed. See Mullis v. U.S. Bankr.

17 Court, 828 F.2d 1385, 1388 (9th Cir. 1987).

18 III. REQUEST FOR JUDICIAL NOTICE 19 Defendant asks the court to take judicial notice of two documents: 1) a collective bargaining agreement (“CBA”) between Defendant and Service Employees International Union, United Service Workers West (“SEIU-USWW”), effective August 5, 2017 through September 30, 2022; and 2) a CBA between Defendant and SEIU-USWW effective October 1, 2022 through June 30, 2026. [Docket No. 25-6 (Request for Judicial Notice (“RJN”), Exs. A, B.] Defendant asserts that Plaintiff’s employment was covered by these CBAs. Mot. 3-4.1 Plaintiff objects to the Defendant also submits declarations by two witnesses regarding Plaintiff’s employment. [Docket Nos. 25-1 (Magnanimo Decl. Sept. 25, 2023); 25-3 (Jingco Decl. Sept. 21, 2023).] The court cannot consider them. See Lee, 250 F.3d at 688 (“when the legal sufficiency of a complaint’s allegations is tested by a motion under Rule 12(b)(6), review is limited to the court taking judicial notice of both documents. Opp’n 11-12.

2 Federal Rule of Evidence 201 permits a court to take judicial notice of adjudicative facts.

3 “The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

6 According to Defendant, the court may take judicial notice of the two CBAs under Rule 201(b), arguing that “[c]ourts routinely take judicial notice of collective bargaining agreements when ruling on motions to dismiss.” RJN 2. However, the authority it cites for this proposition involved cases in which a plaintiff referred to a CBA in the complaint, (Stone v. Writer’s Guild of Am. W., Inc., 101 F.3d 1312, 1314 (9th Cir. 1996)); a plaintiff challenged his termination with his union and did not appear to object to the court’s taking judicial notice of the applicable CBA, (Busey v. P.W. Supermarkets, Inc., 368 F. Supp. 2d 1045, 1049-50 (N.D. Cal. 2005)); and plaintiffs attached a copy of one CBA to the complaint and did not appear to object to the court’s taking judicial notice of an additional CBA, (Hall v. Live Nation Worldwide, Inc., 146 F. Supp. 3d 15 1187, 1190 & n.8 (C.D. Cal. 2015)). RJN 2. None of those circumstances are present here.

16 Defendant also argues that “[c]ourts routinely take judicial notice of documents found on the internet” and identifies a web address that purports to “contain[ ] a copy of the full collective bargaining agreement at issue.” RJN 2-3. None of Defendant’s cited cases stand for the proposition that a court may take judicial notice of a CBA on the ground that it may be found online. Accordingly, the court declines to take judicial notice of the CBAs.2 In its reply, Defendant argues that the court may consider the CBAs under the doctrine of incorporation by reference. Reply 2. The court declines to consider arguments raised for the first time on reply. In any event, the doctrine does not apply here. The incorporation by reference doctrine is “a judicially-created doctrine that treats certain documents as though they are part of the complaint itself.” Khoja v. Orexigent Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018).

This is to prevent “plaintiffs from selecting only portions of documents that support their claims, while omitting portions that weaken—or doom—their claims.” Id. Incorporation by reference is appropriate “if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s claim.” Id. (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)).

However, if a document “merely creates a defense to the well-pled allegations in the complaint, then that document did not necessarily form the basis of the complaint.” Id. Further, “the mere mention of the existence of a document is insufficient to incorporate the contents of a document.”

IV. DISCUSSION Defendant first argues that the CBAs that purportedly governed Plaintiff's employment contain grievance and arbitration provisions that cover the wage and hour claims in the complaint, and that Plaintiff is required to arbitrate claims for meal periods, rest breaks, unpaid wages, unreimbursed business expenses, and overtime. Mot. 13-14. Accordingly, it contends, the court must dismiss all claims in the FAC for “failure to exhaust the CBA’s internal grievance mechanisms.” /d. at 14. Defendant also asserts that the court should dismiss the FAC because all of the claims are preempted by the Labor Management Relations Act, 29 U.S.C. § 185, “because they rely on substantial analysis and interpretation of the CBA,” Mot. 14, and goes on to analyze the terms of the CBA. 7d. at 17-21. Finally, Defendant argues that the court should dismiss or strike Plaintiffs class claims from the FAC because the union waived employees’ rights to bring class and/or collective actions. Id. at 22-23. As these arguments all rely on materials outside the complaint that Defendant has not established are judicially noticeable, the motion is denied.

V. CONCLUSION O For the foregoing reasons, Defendant’s motion to dismiss the FAC is denied. Defendant shall file an answer to the FAC within 21 days of the date of this Order. The December 21, 2023 initial case management conference is continued to February 7, 2024 at 1:30 p.m. via Zoom videoconference. An updated joint CMC statement is due by January 31, 2023.

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