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8 United States District Court 9 Central District of California

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11 JENELL RIVERA, Case № 2:23-cv-08723-ODW (MRWx)

12 Plaintiff, ORDER GRANTING

13 v. DEFENDANTS’ MOTION TO 14 W AL-MART ASSOCIATES, INC. et al., DISMISS PLAINTIFF’S FIFTH CAUSE OF ACTION [26] 15 Defendants.

16 17 I. INTRODUCTION 18 Plaintiff Jenell Rivera brings this putative class action against Defendants Wal- 19 Mart Associates, Inc. and Sam’s West, Inc. for alleged violations of California labor 20 laws. (Second Am. Compl. (“SAC”), ECF No. 23.). Defendants now move to dismiss 21 Plaintiff’s fifth cause action for unfair and unlawful business practices in violation of 22 California Business and Professions Code section 17200 et seq. (Mot. Dismiss 23 (“Mot.” or “Motion”), ECF No. 26.) For the following reasons, the Court GRANTS 24 Defendants’ Motion1 25 26 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 Rivera is a former employee of Sam’s Club, where she worked as an associate. 3 (SAC ¶ 3.) During the course of her employment, Rivera alleges that Defendants 4 impeded her ability to take rest breaks by requiring her to serve customers and 5 complete her assigned tasks before and in lieu of taking her rest breaks. (Id. ¶ 16.) 6 On September 5, 2023, Rivera filed this putative class action in the Superior 7 Court of the State of California for the County of Los Angeles. (Notice of Removal 8 (“NOR”) ¶ 1, ECF No. 1.) Rivera seeks to bring this action on behalf of “all current 9 and former non-exempt employees of [Defendants] in the State of California at any 10 time within the period beginning four (4) years prior to the filing of this action and 11 ending at the time of this action settles or the class is certified.” (Id. ¶ 6; Decl. 12 Mitchell A. Wrosch ISO NOR (“Wrosch Decl.”) Ex. A (“Compl.”) ¶ 5, ECF No. 6-1.) 13 On October 16, 2023, Defendants removed the action to this Court. (NOR ¶ 2.) 14 Rivera has twice amended her Complaint. (See First Am. Compl., ECF No. 18; 15 SAC.) In her SAC, Rivera alleges that Defendants violated the California Labor Code 16 by failing to: (1) authorize and permit rest breaks; (2) furnish accurate itemized wage 17 statements; (3) pay all wages due to terminated employees; and (4) indemnify 18 employees for necessary expenditures incurred during discharge of duties. (Id. ¶¶ 13– 19 35.) Furthermore, in her fifth cause of action, Rivera alleges that Defendants engaged 20 in unfair and unlawful business practices in violation of California Business and 21 Professions Code section 17200 et seq. (Id. ¶¶ 36–45.) 22 Defendants now move to dismiss Rivera’s fifth cause of action under Federal 23 Rule of Procedure (“Rule”) 12(b)(6). (Mot.) 24 III. LEGAL STANDARD 25 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 26 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 27 theory. Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). To 28 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 1 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v.

F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 3 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 4

(2007). That is, the complaint must “contain sufficient factual 5 matter, accepted as true, to state a claim to relief that is plausible on its face.” 6 Ashcroft v. Iqbal,

(2009) (internal quotation marks omitted). 7 The determination of whether a complaint satisfies the plausibility standard is a 8 “context-specific task that requires the reviewing court to draw on its judicial 9 experience and common sense.”

. A court is generally limited to the 10 pleadings and must construe all “factual allegations set forth in the complaint . . . as 11 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 12

(9th Cir. 2001). However, a court need not blindly accept 13 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 14 Sprewell v. Golden State Warriors,

(9th Cir. 2001). 15 Where a district court grants a motion to dismiss, it should generally provide 16 leave to amend unless it is clear the complaint could not be saved by any amendment. 17 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co.,

1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 19 determines that the allegation of other facts consistent with the challenged pleading 20 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 21 Co.,

, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 22 denied . . . if amendment would be futile.” Carrico v. City & County of San 23 Francisco,

(9th Cir. 2011). 24 IV. DISCUSSION 25 In her fifth cause of action, Rivera seeks “a restitutionary remedy under the 26 [Unfair Competition Law (“UCL”)] for [Plaintiff’s] resulting economic injuries 27 because they lack an adequate remedy at law to redress them.” (SAC ¶ 37.) 28 Defendants argue that Rivera’s UCL claim fails because Rivera (1) lacks standing, 1 and (2) fails to allege an inadequate remedy at law. (Mot. 2.) The Court begins its 2 analysis by considering whether Rivera has standing to bring a UCL claim. 3 To establish standing under Article III of the United States Constitution, a 4 plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the 5 challenged conduct of the defendant, and (3) that is likely to be redressed by a 6 favorable judicial decision.” Spokeo, Inc. v. Robins,

(2016) (citing 7 Lujan v. Defs. of Wildlife,

, 560–61 (1992)). To establish standing to 8 seek injunctive relief, a plaintiff must “demonstrate that [they have] suffered or [are] 9 threatened with a ‘concrete and particularized’ legal harm, coupled with a ‘sufficient 10 likelihood that [they] will again be wronged in a similar way.’” Joslin v. Clif Bar & 11 Co., No. 4:18-cv-04941-JSW,

, at *2 (N.D. Cal. Aug. 26, 2019) 12 (quoting Bates v. United Parcel Serv., Inc.,

(9th Cir. 2007)). “In a 13 class action, standing is satisfied if at least one named plaintiff meets the 14 requirements.” Bates,

. 15 The Ninth Circuit has dismissed UCL claims for lack of standing in cases where 16 the named plaintiff was not currently employed by defendants. See Ellis v. Costco 17 Wholesale Corp.,

(9th Cir. 2011) (“Plaintiffs not employed by 18 [defendant] throughout this case [did] not have standing to seek injunctive relief.”); 19 see also Richards v. Ernst & Young LLP, No. C 08-4988 JF (HRL),

, 20 at *17 (N.D. Cal. Feb. 24, 2010) (“[A] former employee lacks standing to seek 21 prospective injunctive relief on behalf of a putative class containing both former and 22 current employees.”). 23 Here, Rivera clearly pleads that “[s]he is a former employee” of Defendants, 24 and that her employment ended on “approximately September 13, 2022.” (SAC ¶ 3.) 25 Rivera also does not plead that she is seeking to return to employment. See Suarez v. 26 Bank of Am. Corp., No. 18-cv-01202-MEJ,

, at *17 (N.D. Cal. 27 Aug. 2, 2018) (granting defendants’ motion to dismiss the claims for injunctive relief 28 when plaintiff was a former employee and failed to allege any facts regarding future 1 || injury). Furthermore, the Court notes that Rivera fails to address Defendants’ standing argument in her Opposition to Defendants’ Motion. (See Opp’n Mot. 3 || Dismiss, ECF No. 27.) 4 Having found that Rivera lacks standing to bring a claim for injunctive relief, 5 || the Court need not address whether Rivera sufficiently pleads an inadequate remedy at 6 || law. 7 Vv. CONCLUSION 8 For the reasons discussed above, the Court GRANTS Defendant’s Motion to 9 || Dismiss Plaintiff's Fifth Cause of Action. (ECF No. 26.) 10 11 IT IS SO ORDERED. 12 13 April 25, 2024 14 Fe yee

16 OTIS D. GHT, II 4 UNITED STATES DISTRICT JUDGE

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