Vasserman v. Henry Mayo Newhall Memorial Hospital
Tanya VASSERMAN, on behalf of herself and all others similarly situated and the general public v. HENRY MAYO NEWHALL MEMORIAL HOSPITAL, and Does 1 to 100, inclusive
Attorneys
Bruce Zar'eh Kokozian, Kokozian Law Firm APC, Beverly Hills, CA, Gregg Lander, Kevin T. Barnes, Law Offices of Kevin T. Barnes, Los Angeles, CA, Janelle C. Carney, Jason T. â Hatcher, Joseph Anto-nelli, Law Office of Joseph Antonelli, Chino Hills, CA, for Plaintiff., Aaron F. Olsen, Michael S. Kun, Epstein Becker and Green PC, Epstein Becker & Green PC, Lisa Mariko Watanabe, Los Angeles, CA, for Defendants.,
Full Opinion (html_with_citations)
ORDER GRANTING PLAINTIFFâS MOTION TO REMAND AND DENYING DEFENDANTâS MOTION TO DISMISS AS MOOT
On June 18, 2014, Tanya Vasserman filed this putative class action in Los Ange-les Superior Court against Henry Mayo Newhall Memorial Hospital (âNewhall Memorialâ) and various fictitious defendants, alleging violations of state wage and hour lawsâ.
â On September 8, 2014, Vasserman filed a motion to remand the action to Los Angeles Superior Court for lack of subject matter jurisdiction.
Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds this matter appropriate for decision without oral argument. The hearing calendared for December 8,
I. FACTUAL BACKGROUND
A. Facts Alleged in the Complaint
1. Factual Allegations Concerning All Plaintiffs
Vasserman is a clinical registered nurse who, prior to this litigation, worked at Newhall Memorial as an hourly, non-exempt employee.
a. Newhall Memorialâs Alleged Failure to Pay All Wages Earned and Appropriate Overtime Compensation
Vasserman alleges, on information and belief, that pursuant to an established business practice and policy, Newhall Memorial schedules its non-exempt hourly employees to work in excess of eight hours a day; at times, it purportedly schedules employees to work shifts in excess of ten and twelve hours.
Vasserman asserts that Newhall Memorialâs policy is to pay straight time, rather than overtime, for all hours worked in excess of eight hours a day.
b. Newhall Memorialâs Allegedly Improper Meal Policies
Vasserman also alleges that Newhall âą Memorialâs meal period policies violate the California Labor Code and Wage Order 5-2001 of the California Industrial Welfare Commission (âIWCâ).
c. Newhall Memorialâs Alleged Failure to Provide Itemized Wage Statements
Vasserman alleges, on information and belief, that in addition to Newhall Memorialâs allegedly unlawful overtime and meal period policies, it consistently failed to provide its employees itemized wage statements in accordance with California Labor Code § 226.
d. Newhall Memorialâs Alleged Failure to Pay Proper Wages as a Re- . suit of its Rounding Policy
Finally, Vasserman contends that New-hall Memorial employs a rounding policy in calculating employee wages that disproportionately and negatively impacts employees.
2. The Putative Classes
Vasserman seeks to represent five putative classes of current and former Newhall Memorial employees:
Class 1: All hourly, non-exempt employees of Newhall Memorial who worked more than eight (8) hours in a day or more than forty (40) hours in a week from four (4) years before the filing of this action through the date of judgment and were not paid proper premium overtime and double time wages (âPay Plan Classâ);
Class 2: All hourly, non-exempt employees who worked for Newhall Memorial at some point from four (4) years before the filing of this action through the date of judgment, and who are no longer employed by Newhall Memorial (âWaiting Time Penalty Classâ);
Class 3: All hourly, non-exempt employees who worked for Newhall Memorial from four (4) years before the filing of this action through the date of judgment who were subjected to Newhall Memorialâs meal period policies and practices (âMeal Break Classâ);
Class U: All hourly, non-exempt employees who worked for Newhall Memorial from one (1) year before the filing of this action through the date of judgment who were provided a paystub, i.e., wage statement, by Newhall Memorial (âPay Stub Classâ); and
Class 5: All hourly, non-exempt employees who worked for Newhall Memorial*941 from four (4) years before the filing of this action through the date of judgment, who were subject to Newhall Memorialâs rounding policy and practice (âRounding Classâ).
3. Vassermanâs Claims
On behalf of these classes, Vasserman pleads claims for (1) violation of Californiaâs Unfair Competition Law (âUCLâ), California Business and Professions Code § 17200 et seq.;
B. The Partiesâ Requests for Judicial Notice
Vasserman requests that the court take judicial notice of two documents in eonnection with her motion to remand the action to Los Angeles Superior Court,
A court can consider evidence in deciding a remand motion, including document's that can be judicially noticed. See, e.g., Ryti v. State Farm General Ins. Co., No. C 12-01709 JW, 2012 WL 2339718, *1 n. 4 (N.D.Cal. May 30, 2012) (granting plaintiffsâ request for judicial notice and considering documents that were proper subjects of judicial notice in deciding a remand motion); Vasquez v. Arvato Digital Services, LLC, No. CV 11-02836 RSWL (AJWx), 2011 WL 2560261, *2 (C.D.Cal. June 27, 2011) (considering documents that were proper subjects of judicial notice in deciding a remand motion); Aniel v. TD Serv. Co., No. C 10-05323 WHA, 2011 WL 109550, *3 (N.D.Cal. Jan. 13, 2011) (taking judicial notice of court orders and the judgment in a prior case as public records in deciding a motion to remand); Deutsche Bank Nat. Trust Co. v. Sitanggang, No. L09CV01835 AWL DLB, 2010 WL 144439, *1 n. 1 (E.D.Cal. Jan. 11, 2010) (taking judicial notice of documents proffered by plaintiff in deciding a motion
In deciding a Rule 12(b)(6) motion, however, courts generally look only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). Although a court must normally convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it âconsiders evidence outside the pleadings ... [it] may consider certain materials â documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice â without converting the motion to dismiss into a motion for summary judgment.â United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir.2003). See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (a court may consider âother sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial noticeâ); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994) (noting that a court may consider a document whose contents are alleged in a complaint, so long as no party disputes its authenticity), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002).
Thus, in deciding Vassermanâs motion to remand and Newhall Memorialâs motion to dismiss, the court can consider material that can be judicially noticed under Rule 201 of the Federal Rules of Evidence. Fed.R.Evjd. 201. Under Rule 201, the court can take judicial notice of â[ojfficial acts of legislative, executive, and judicial departments of the United States,â and â[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably undis-putable accuracy.â
The parties request that the court take notice of four court orders: (1) an order by Judge Philip S. Gutierrez remanding Marincovich v. Aramark Uniform & Career Apparel, Inc., No. CV 12-10245 PSG (JEMx), filed March 11, 2013;
âUnder Federal Rule of Evidence 201, the [c]ourt may take judicial notice of matters of public record if the facts are not âsubject to a reasonable dispute.â â Olds v. Metlife Home Loans, No. SACV 12-55 JVS (RNBx), 2012 WL 10420298, *1 n. 1 (C.D.Cal. Mar. 19, 2012) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001)). Court orders
Newhall Memorial also asks that the court take judicial notice of the operative complaint in this action.
Newhall Memorial also requests that the court take judicial notice of Wage Order No. 52001 of the California Industrial Welfare Commission (âIWCâ).
II. DISCUSSION
A. Vassermanâs Evidentiary Objections
1. Declaration of Mark Puleo in Support of Newhall Memorialâs Notice of Removal
Before addressing the merits of the partiesâ respective motions, the court first considers various evidentiary objections Vasserman asserts to declarations submitted by Newhall Memorial in support of its notice of removal and in opposition to Vas-sermanâs motion to remand.
Puleo states, under penalty of perjury, that the statements in the declaration are based on personal knowledge he has gained as Newhall Memorialâs Vice President and Chief Human Resources Officer; this provides adequate foundation for the statements. See Fed.R.Evid. 602 (âA witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witnessâs own testimonyâ); Barthelemy v. Air Line Pilots Assân, 897 F.2d 999, 1018 (9th Cir.1990) (concluding that a CEOâs personal knowledge of various corporate activities could be presumed). Indeed, Puleo explains that many of his statements are based on his review of Newhall Memorial records that are available to him as Vice President and Chief Human Resources Officer.
The statements in Puleoâs declaration are, moreover, relevant because they bear directly on whether the court has subject matter jurisdiction. See Fed. R.Evid. 401 (âEvidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the actionâ). Pu-leoâs declaration makes it more likely that Vassermanâs claims are preempted and/or that the requirements-for removal under the Class Action. Fairness Act are satisfied. Vassermanâs relevance objection is thus overruled.
Even if evidence is relevant, of course, the court may exclude it under Rule 403 âif its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.â Undue prejudice means an âundue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.â Fed.R.Evid. 403, Advisory
Similarly unavailing are Vassermanâs objections under Rules 701, 702, 704, 801, 802, and 901 of the Federal Rules of Evidence. Puleoâs statements do not constitute expert opinion. Rule 702 of the Federal Rules of Evidence governs the admission of expert testimony. Under Rule 702,
â[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.â Fed.R.Evid. 702.
See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (â[Rule 702] consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinionâ); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) (âThere are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthyâ (citations omitted)).
In contrast, Rule 701 permits lay opinion testimony that is â(a) rationally based on the witnessâs perception; (b) helpful to clearly understanding the witnessâs testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.â Fed.R.Evid. 701. Rule 701âs requirement that opinion testimony be based on a witnessâs perception derives from Rule 602. That rule states-in pertinent part that â[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witnessâs own testimony.â Fed.R.Evid. 602.
Puleoâs statements are based on personal knowledge; they are not the product of âscientific, technical, or other specialized knowledge.â That Puleo knows the information as a result of his work for Newhall Memorial does not convert factual observations into expert testimony. Courts routinely permit witnesses to offer lay opinion testimony concerning matters
Moreover, although Puleo provides calculations concerning the number of putative class members, the approximate number of paychecks they received, and their average hourly rate of pay, none of this information concerns subject matter âbeyond the common knowledge of the average layman,â such that Puleo would have to qualify as an expert. Vasserman does not explain why simple mathematical calculations constitute expert testimony. Although she contends that Puleo must be âan expert qualified to provide an opinion as to ... who constitutes [a] class member!],â
Vasserman objects finally that the challenged paragraphs of Puleoâs declaration contain inadmissible hearsay and lack authentication. She offers no substantive argument supporting the objections and the court finds no basis for them. Puleo is not recounting an out-of-court statement to prove the truth of the matter asserted; rather, he testifies based on personal knowledge of Vassermanâs personnel files. Cf. Fed.R.Evid. 801(c) (â âHearsayâ means a statement that: (1). the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statementâ). Moreover, it is unclear what portions of Puleoâs statements Vasserman contends must be authenticated. Accordingly the court overrules Vassermanâs authentication objection. See, e.g., Burch v. Regents of University of California, 433 F.Supp.2d 1110, 1123-24 (E.D.Cal.2006) (âBecause defendants only generally raise this objection without specifying which of the numerous exhibits ... are actually not self authenticating, the court overrules this objection. The burden is on defendants to state their objections with specificity. Cf. 10B Wright, Miller & Kane, Fedekal Practice and Procedure § 2738 (âIt follows that a motion to strike should specify the objectionable portions of the affidavit and the grounds for each objection. A motion asserting only a general challenge to an affidavit will be effective.â) Moreover, because defendants do not actually dispute the authenticity of these documents, the court is confident plaintiff would be able to authenticate them at trialâ (emphasis added)).
For the reasons stated, the court overrules each of Vassermanâs objections to Puleoâs declaration and will consider the declaration in its entirety in ruling on the motion to remand.
2. Declarations of Angela Watkins and Rolando Bergado in Support of Newhall Memorialâs Notice of Removal
Vasserman also objects to portions of the declarations of Angela Watkins
As discussed infra, Vassermanâs assertion that neither Watkins nor Berga-do is a putative class member as defined in the complaint is unavailing; their statements are thus relevant because they make it more probable that minimal diversity exists between Newhall Memorial and the putative class members. See Fed. R.Evid. 401 (evidence is relevant if it has âany tendency to make the existence of any fact ... more or less likely that it would be without the evidenceâ). The court thus overrules Vassermanâs relevance objection to the Watkins and Berga-do declarations. It similarly overrules her objection under Rule 403. Vasserman does not explain how she will be unfairly prejudiced by consideration of the Watkins and Bergado declarations; rather, it appears the only form of âprejudiceâ she will suffer is that the declarations make it less likely her remand motion will be granted. As noted, the fact that evidence is adverse to a partyâs position does not support its exclusion under Rule 403; rather, the evidence must result in âunfair prejudice.â See Old Chief, 519 U.S. at 180, 117 S.Ct. 644 (unfair prejudice means an âundue tendency to suggest decision .on an improper basis, commonly, though not necessarily, an emotional one,â quoting Fed.R.Evid. 403, Advisory Committee Notes, 1972 Proposed Rules). See also United States v. Munoz, 36 F.3d 1229, 1233 (1st Cir.1994) (âThe damage done to the defense is not a basis for exclusion; the question under Rule 403 is âone of âunfairâ prejudiceânot of prejudice aloneâ â); Dollar, 561 F.2d at 618. Consequently, the court overrules Vassermanâs Rule 403 objection to Watkinsâ and Bergadoâs declarations.
B. Vassermanâs Motion to Remand
1. Legal Standard Governing Removal Jurisdiction
The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979). The removal statute, 28 U.S.C. § 1441, allows defendants to remove when a case originally filed in state court presents a federal question or is between citizens of different states and involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b); see also 28 U.S.C. §§ 1331, 1332(a). A case presents a âfederal questionâ if a claim ââaris[es] under the Constitution, laws, or treaties of the
There is an exception to the âwell pleaded complaintâ rule, however. Under the âartful pleadingâ doctrine, a plaintiff cannot defeat removal of a federal claim by disguising or pleading it artfully as a state law cause of action. If the claim arises under federal law, the federal court will recharacterize it and uphold removal. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398 n. 2, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Schroeder v. Trans World Airlines, Inc., 702 F.2d 189, 191 (9th Cir.1983). The âartful pleadingâ doctrine applies to state claims that are completely preempted by federal law. See Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 (âOnce an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal lawâ); ARCO Environmental Remediation, L.L.C. v. Department of Health & Environmental Quality of Montana, 213 F.3d 1108, 1114 (9th Cir.2000) (âA state-created cause of action can be deemed to arise under federal law ... where federal law completely preempts state lawâ).
To support a finding of complete preemption, the preemptive force of the federal statute at issue must be âextraordinary.â See Metropolitan Life Ins. Co., 481 U.S. at 65, 107 S.Ct. 1542; Holman v. Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir.1993) (âThe [complete preemption] doctrine applies in select cases where the preemptive force of federal law is so âextraordinaryâ that it converts state common law claims into claims arising under federal law for purposes of jurisdiction,â citing Caterpillar, 482 U.S. at 386, 107 S.Ct. 2425). For this reason, the complete preemption doctrine is narrowly construed. See Holman, 994 F.2d at 668 (âThe [complete preemption] doctrine does not have wide applicability; it is a narrow exception
2. Whether the Court Has Federal Question Jurisdiction
a. Legal Standard Governing § 301 Preemption
Section 301(a) of the LMRA gives federal courts exclusive jurisdiction to hear â[s]uits for violation of contracts between an employer and a labor organization.â 29 U.S.C. § 185(a). See Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. 2841 (âThe preemptive force of § 301 is so powerful as to displace entirely any state cause of action âfor violation of contracts between an employer and a labor organization.â Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301â); see also Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 (âSection 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims âsubstantially dependent on analysis of a collective-bargaining agreement,â â quoting Electrical Workers.v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). Section 301 âmandate[s] resort to federal rules of law in order to ensure uniform interpretation of collective:bargaining agreements, and thus to promote the peaceable, consistent resolution of labor-management disputes.â Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 404 n. 3, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).
To further the goal of uniform interpretation of labor contracts, the preemptive effect of § 301 has been extended beyond suits that allege the violation of a collective bargaining agreement. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (âThe interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law also require that the meaning given a contract phrase or term be subject to uniform federal interpretationâ). Thus, a state law claim will be preempted if it is so âinextricably intertwinedâ with the terms of a labor contract that its resolution will require judicial interpretation of those terms. Id. at 213, 105 S.Ct. 1904 (holding that a claim for breach of the duty of good faith, and fair dealing was preempted by § 301 because âgood faithâ and âfair dealingâ had to be assessed with reference to the contractual obligations of the parties).
Despite the broad preemptive effect of § 301, a claim that seeks to vindicate ânonnegotiable state-law rights ... independent of any right established by contractâ is not within its scope. Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct.
Nor can a defendant invoke preemption merely by alleging a âhypothetical connection between the claim and the terms of the CBA,â or a âcreative linkageâ between the subject matter of the suit and the wording of the CBA. Id. at 691-92. To prevail, âthe proffered interpretation argument must reach a reasonable level of credibility.â Id. at 692. A preemption argument is not credible âsimply because the court may have to consult the CBA to evaluate [a plaintiffs claim]; [similarly,] âlooking] toâ the CBA merely to discern that none of its terms is reasonably in dispute does not require preemption.â Id. (quoting Livadas, 512 U.S. at 125, 114 S.Ct. 2068). In Cramer, the Ninth Circuit clarified the scope of the LMRAâs preemptive effect:
âTo the extent our prior cases held or implied that preemption was proper because of the mere possibility that the subject matter of the claim was a proper subject of the collective bargaining process, whether or not specifically discussed in the CBA, we today hold such statements to be an incorrect articulation of § 301 preemption principles. A state law claim is not preempted under § 301 unless it necessarily requires the court to interpret an existing provision of a CBA that can reasonably be said to be relevant to the resolution of the dispute.â Id. at 693.
See also Humble v. Boeing Co., 305 F.3d 1004, 1007-08 (9th Cir.2002) (recognizing that Cramer ârevised [the] framework for analyzing § 301 preemption and synthesized the considerations involvedâ).
The Ninth Circuit has articulated a two-part test to determine whether a cause of action is preempted by the LMRA. Burnside v. Kiewit Pacific Corp., 491 F.3d 1053, 1059 (9th Cir.2007). First, the court must determine âwhether the asserted cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA. If the right exists solely as a result of the CBA, then the claim is preempted, and ... analysis ends.... If however, the right exists independently of the CBA, [the court] must still consider whether it is nevertheless âsubstantially dependent on analysis of a collective-bargaining agreement.â If such dependence exists, then the claim is preempted by section 301; if not,
b. Whether Vassermanâs Claims are Preempted
Vasserman alleges state law claims for unfair business practices under California Business and Professions Code § 17200 et seq.; failure to pay overtime compensation in violation of California Labor Code §§ 204, 510, 1194, 1198; waiting time penalties under California Labor Code § 200 et seq.;
(1) Whether Vassermanâs Overtime Claim is Preempted
Vasserman contends that her second claim for failure to provide overtime compensation in violation of California Labor Code §§ 204, 510, 1194, 1198 is âbased on and conferred by substantive non-waivable rights under state law â specifically, the California Labor Code â and not by rights or duties under [Newhall Memorialâs] CBAs.â
The CBAs suggest that Vassermanâs claim may be based on a statute that does not apply. Labor Code § 514 exempts
âSection 510 and 511 do not apply to an employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage.â Cal. Lab.Code § 514.
Section 514 is an affirmative defense that must be pled and proved by Newhall Memorial. See Mireles v. Paragon Systems, Inc., No. 3:13-CV-00122-L-BGS, 2013 WL 3450090, *3-4 (S.D.Cal. July 9, 2013) (denying a motion to strike a § 514 affirmative defense to plaintiffs overtime claims); see also Araquistain v. Pacific Gas & Electric Company, 229 Cal.App.4th 227, 231, 176 Cal.Rptr.3d 620 (2014) (recognizing that California Labor Code §§ 512(e)-(g), the statutory exemptions to meal period violations, are affirmative defenses to a claim for violation of § 512(a)). Vasserman asserts it is premature to determine whether § 514 applies because Newhall Memorial has not yet pled the defense.
Second, because, as noted, Newhall Memorialâs reliance on § 514 is essentially a defense to Vassermanâs overtime claim, it does not give rise to § 301 preemption. See Humble, 305 F.3d at 1011 (âBoeing argues that when it offers a non-discriminatory justification for its conduct by relying on authorizing CBA provisions, that suffices to trigger preemption of Humbleâs reasonable accommodation claim. This argument is unavailing after Cramer, which held that reliance on CBA provisions to defend against an independent state law claim does not trigger § 301 preemptionâ). Accordingly, the court finds that Vassermanâs second claim is not preempted.
In so holding, the court reaches the same conclusion as several other courts in this district, each of which has recognized that âreliance on the CBA as an aspect of a defense is not enough to âinject[ ] a federal question into an action that asserts what is plainly a state-law claim.â â Placencia v. Amcor Packaging Distribution, Inc., No. SACV 14-0379 AG (JPRx), 2014 WL 2445957, *2 (C.D.Cal. May 12, 2014) (citing Caterpillar, 482 U.S. at 399, 107 S.Ct. 2425). These courts have rejected the arguments Newhall Memorial makes hereâi.e., that an overtime claim arises under the CBA, rather than state law, when the defendant asserts an affirmative defense under § 514.
In Placencia, 2014 WL 2445957 at *2-3, for example, Judge Andrew Guilford remanded a wage and hour action to state court; he concluded that Placenciaâs overtime claim did not arise under the CBA
Similarly, in Bart v. Parkview Community Hospital Medical Center, No. EDCV 14-01614 JGB (DTBx) (C.D.Cal. Sept. 18, 2014),
The court finds the reasoning of Judges Guilford and Bernal instructive. As the Ninth Circuit has recognized, â[i]t is âsettled law that a case may not be removed to federal court on the basis of a federal defense, including a defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.â â Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir.2000) (quoting Franchise Tax Bd., 463 U.S. at 14, 103 S.Ct. 2841). Newhall Memorial, however, seeks to remove precisely on this basis. Even if Newhall Memorialâs § 514 defense ultimately prevails, Vassermanâs claim is premised on state law rights afforded by § 510, not on rights created by the CBA. Humble, 305 F.3d at 1008 (â[T]he plaintiffs claim is the touchstone for the preemption analysis, and âthe need to interpret the CBA must inhere in the nature of plaintiffs claimâ to trigger preemption,â citing Cramer, 255 F.3d 683). See, e.g., Morales v. Amcor Packaging (USA), Inc., No. 2:14-CV-03612-ODW (AJW), 2014 WL 2931174, *4 (C.D.Cal. June 30, 2014) (âHere, the issue is whether Amcor provided meal and rest periods in accordance with California wage-and-hour law. As a defense, Amcor may submit the CBA and argue that Morales and the rest of the class agreed to forgo off-duty meal and rest breaks. However, a valid defense will not support removal to district court; it simply means that Amcor prevails in state courtâ); Placencia, 2014 WL 2445957 at *2 (âAmcor argues [that because] âPlaintiffs only right to overtime is the one that
The Ninth Circuitâs holding in Firestone v. Southern'California Gas Company, 219 F.3d 1063 (9th Cir.2000), is not to the contrary. Plaintiffs were meter readers, whose unions negotiated âflat sums for completing meter reading routes of assigned lengths.â Id. at 1065. Meter readers who worked more than eight hours in a day âreceived an adjustment to the flat sum normally paid.â Id. The agreement set forth a formula for determining the number of overtime hours; defendant, however, calculated overtime pay a different way. Id. at 1065-66. âThe district court held that one could not determine whether plaintiffs were receiving a âpremium wage rateâ for overtime under the collective bargaining agreement â making them- exempt from California overtime laws â without interpreting that agreement to determine, inter alia, what the regular rate was.â Id. at 1066. The Ninth Circuit agreed. It concluded that to resolve the partiesâ dispute, the court would have to interpret the terms of the CBA to determine if plaintiffs were receiving a premium wage for overtime, and based on that interpretation, decide if Californiaâs overtime exemption applied. Id. at 1067 (âBecause the collective bargaining agreement must be' interpreted to determine whether the PPR document provides for premium wage rates for overtime work and, therefore, whether Californiaâs overtime exemption provision applies, ... [plaintiffsâ state law claim is preempted by the LMRAâ). Here, by contrast, no interpretation is required to determine the applicability of the exemption. The overtime provisions of the CBAs are straightforward and clear.
Vasserman does not dispute the applicable wage rates that are provided in the CBA â instead, she argues that she was not paid overtime as required by California law. Although it is apparent that calculations will be required to resolve her overtime claims given the three overtime plans set forth in the CBAs,
Although Newhall Memorial asserts that several terms of the CBAs require interpretation to determine whether it is entitled to invoke the exemption, the court is not persuaded.
âOn Call (Uncontrolled Standby): Time spent by a Nurse placed on on-call status (Uncontrolled Standby) shall not be treated as time worked for that Nurseâs compensation, benefits, or any other purpose; provided, however, time spent by a Nurse on on-call status (Un- - controlled Standby) shall be paid to the Nurse at the hourly rate of $8.00. Any Nurse who is on on-call status and receives a call and request to perform substantive work which does not require the Nurse to come into the Hospital shall receive pay at the Nurseâs Base Hourly Rate for all time actually worked. De minimus time spent, defined as less than fifteen minutes in the aggregate, in response to a call shall not be considered time actually worked.â80
Newhall Memorial contends that the court must interpret the CBAs to determine whether on-call time is de minimis or not.
The court is not convinced that whether time is âde minimisâ will require interpretation of the CBAs, as the agreements specifically define âde minimisâ as less than fifteen minutes in the aggregate. As with Section 18âs provision governing paid education leave, the real question is whether de minimis time constitutes âhours workedâ under California law. Resolution of this question necessarily requires interpretation and application of state law, not
For the reasons stated, the court concludes that Vassermanâs second claim for relief is not preempted by § 301.
(2) Whether Vassermanâs Meal Period Claim is Preempted
Newhall Memorial contends that Vasser-manâs meal period claim is preempted under § 301 because each of the CBAs provide for meal periods and also âsets forth detailed procedures describing what employees must do if they claim they did not receive meal periods.â
Meal periods are a non-negotiable right under state law. Courts have thus held that California state law claims alleging meal period violations are not preempted even where the CBA includes language entitling employees to such breaks. Valles v. Ivy Hill Corp., 410 F.3d 1071, 1082 (9th Cir.2005) (âWe need not, indeed may not, construe the Ivy Hill [CBA] in order to consider whether a waiver exists because any provision of the [CBA] purporting to waive the right to meal periods would be of no force or effect: The right in question is plainly nonnegotiableâ). See Roth v. CHA Hollywood Medical Center, L.P., No. 2:12-cv-07559 ODW (SHx), 2013 WL 5775126, *3 (C.D.Cal. Oct. 25, 2013) (âHPMC also argues that Section 301 preempts Ekinâs meal-break claims. Ekin claims that (1) HPMC did not provide off-duty meal breaks to her and putative class members in violation of the Labor Code due to understaffing and frequent interruptions; and (2) HPMC only provided Ekin and putative class members one meal break per 12-hour shift, whereas the Labor Code requires two meal breaks during a 12-hour shift. California law mandates that an employer provide off-duty' meal periods, and that right is independent of any provision of the CBA. Again, Ekinâs meal-break claims can be resolved simply by looking to payroll and time records and employee testimony. Like Ekinâs rest-break claims, Section 301 does not preempt her meal-break claimsâ); Meyer v. Irwin Indus., Inc., 723 F.Supp.2d 1237, 1244 (C.D.Cal.2010) (âHere, [plaintiffs] claims are based on rights conferred by California Labor Code §§ 512(a) and 226.7, and Wage. Order No. 16. Thus, Plaintiffs second meal period claims arise under state law and do not substantially depend upon an interpretation of the CBA. Additionally, that the CBA includes terms that entitle employees to second meal periods is of no import.... As such, it is irrelevant that the CBA provides for similar claims under its own terms because the state law claims can be
Newhall Memorial argues that â[t]o evaluate [pjlaintiffs claims that she did not receive meal periods, it will be necessary to analyze whether she (and others) complied with their obligations under the CBA concerning notification of their supervisors,â because whether or not they complied with these obligations âwill bear on (a) the credibility of his or her claims, (b) whether he or she comes with clean hands, and (c) whether Defendant was given an opportunity to correct prior unreported untaken meal periods.â
As with her overtime claim, Vasserman clearly and explicitly invokes the protections provided by the California Labor Code, not similar rights to meal periods provided by the CBAs.
Newhall Memorial disputes this, arguing that the resolution of the meal period claim will necessarily involve CBA provisions requiring that employees notify their supervisors of any meal period violation they experienced.
â[r]he partiesâ agreement as to the manner in which a benefit claim would be handled [would] necessarily [have been] relevant to any allegation that the claim was handled in a dilatory manner.... These questions of contract interpretation, therefore, underlie any findings of tort liability, regardless of the fact that the state court may choose to define the tort as âindependentâ of any contract question. Congress has mandated that federal law govern the meaning given contract terms. Since the state tort purports to give life to these terms in a different environment, it is pre-empted.â Id. at 218, 105 S.Ct. 1904.
Allis-Chalmers is distinguishable. There, resolution of a state tort claim for breach of the duty of good faith and fair dealing required a determination as to whether defendantâs claims handling breached the duty of âgood faithâ and âfair dealing,â which, in turn, required that the court interpret the partiesâ agreement to determine how they had agreed claims would be handled. Here, by contrast, Vasserman pleads a claim for violation of a state law that unambiguously requires employers to provide their employees with uninterrupted, paid meal periods. The statute is violated when an employer fails to the meal periods available. There is no need to look to the CBAs to determine whether a violation has occurred, i.e., whether Vasserman or the putative class members were denied the ability to take meal periods guaranteed by statute. Therefore, the court concludes that Vas-sermanâs meal period claim is not preempted by § 301 of the LMRA.
(3) Whether Vassermanâs Remaining Claims are Preempted
Although it contends that Vassermanâs overtime and meal period claims are preempted, Newhall Memorial does not argue that her other claims are likewise preempted by § 301. Vassermanâs first cause of action alleges violation of Californiaâs UCL, Business and Professions Code § 17200 et seq.; her third claim alleges violation of Labor Code § 200 et seq., while the fourth pleads a violation of § 226. The sixth cause of action seeks civil penalties under PAGA, and the seventh alleges violation of Labor Code §§ 510(a), 1194, and IWC Wage Order 5-2001. In its notice of removal, Newhall Memorial does not indicate which claims it asserts are preempted by § 301; rather, it states, in the most general terms, that âvarious terms of the different CBAs must be interpreted in this matter to address Plaintiffs claims.â
Even had Newhall Memorial not abandoned any preemption argument it may have had regarding these claims, the court would conclude that it had failed to demonstrate that resolution of Vasser-manâs first, third, fourth, sixth, and seventh claims requires interpretation of the CBAs. The claims all seek to vindicate rights provided by state law. None, moreover, requires interpretation of the CBAs. While the calculation of waiting time penalties will require reference to wage rates set forth in the CBA, this is insufficient to preempt the claim. See Invadas, 512 U.S. at 124, 114 S.Ct. 2068 (holding that a Labor Code § 203 claim was not preempted because âthe primary text for deciding whether Livadas was entitled to a penalty was not the Food Store Contract, but a calendarâ); see Lara v. San Bernardino Steel Inc., CV 11-1357. PA (Ex), 2011 WL 4480167, *3 (C.D.Cal. Sept. 20, 2011) (finding that Labor Code §§ 203 and 2802 claims arose under state law and were not preempted); Meyer, 723 F.Supp.2d at 1245-46 (finding that a § 203 claim arose under California law, was not waivable, and thus was not preempted). Similarly, while inaccurate wage' statement claims may require reference to the CBAs, the relevant provisions of those agreements do not, as the court has noted, require interpretation. Thus, the claim is not preempted. Avalos v. Foster Poultry Farms, 798 F.Supp.2d 1156, 1162 (E.D.Cal. July 27, 2011) (holding that claims for violations of California Labor Code §§ 201-03, 204, 226, 226.7, 512, 510, and 1194, IWC Wage Order 4-2001, and California Business and Professions Code § 17200 et seq. arose under California law and were not preempted). As respects Vassermanâs rounding claim, it is unclear that it even requires resort to the CBAs. If it does, however, it would not be preempted because no interpretation of the agreements is required. Avalos, 798 F.Supp.2d at 1162; Bonilla v. Starwood Hotels & Resorts Worldwide, Inc., 407 F.Supp.2d 1107, 1112-13 (C.D.Cal.2005) (holding that claims for violations of state wage and hours laws, including California Labor Code §§ 203 and 226.7, and violation of IWC Wage Order 5-2001 arose under state law and were not preempted). Finally, Vassermanâs UCL claim is wholly derivative of her other
(4) Whether the Presence of Grievance and Arbitration Procedures Requires Analysis of the CBAs
Finally, Newhall Memorial contends that various grievance and arbitration procedures set forth in each of the CBAs âraise additional issues of CBA interpretation.â
â[A] court may look to the CBA to determine whether it contains a clear and unmistakable waiver of state law rights without triggering [§ ]301 preemption.â Meyer, 723 F.Supp.2d at 1243 (citing Burnside, 491 F.3d at 1059-60). â[I]n order, for a grievance and arbitration provision to implicate preemption, the âunion-negotiated waiver of employeesâ statutory right to a judicial forumâ must be âclear and unmistakable.â â Munoz v. Atlantic Express of L.A., Inc., No. CV 126074 GHK (FMOx), 2012 WL 5349408, *4 (C.D.Cal. Oct. 30, 2012) (quoting Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80-81, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998)).
When a CBAâs grievance and arbitration procedure does not directly reference the statutes at issue, courts have concluded that the agreement does not contain a âclear and unmistakable waiverâ of an employeeâs right to a judicial forum. See, e.g., Wright, 525 U.S. at 80-81, 119 S.Ct. 391 (concluding that a CBA that purported to âcover all matters affecting wages, hours, and other terms and conditions of employmentâ did not contain a clear and unmistakable waiver of the covered employeesâ rights to a judicial forum to assert discrimination claims under the ADA); Martinez v. J. Fletcher Creamer & Son, Inc., No. CV 10-0968 PSG (FMOx), 2010 WL 3359372, *3 (C.D.Cal. Aug. 13, 2010) (âconcluding that the plaintiff âwas not required to file a grievance under the CBA to pursue his statutory claims,â given that âthe CBA [did] not directly reference the [relevant federal and state wage and hour] statutes at issue, ... [such that it] [did] not âclearly and unmistakablyâ waive Plaintiffs rights under those statutesâ); see also Munoz, 2012 WL 5349408 at *5 (âHere, the CBA provides that â[t]he grievance procedure provided herein shall be the sole and exclusive remedy for an alleged grievance under this Agreement and
Newhall Memorial does not cite the relevant grievance and arbitration provisions of the CBAs, nor does it articulate why the court would need to do more than âlook toâ the provisions of the CBAs to determine whether the grievance and arbitration procedures apply, and whether they constitute a clear and unmistakable waiver of Vassermanâs rights under the Labor Code. It is apparent, however, from âlooking toâ the CBAs, that the relevant grievance and arbitration provision is found in Article 12.
The court would find no preemption, in fact, even if Vassermanâs claims fell within the scope of the CBAsâ grievance and arbitration procedure. Numerous courts have held that a defendantâs argument that a plaintiff has waived her right to pursue state law claims due to a grievance and arbitration provision in a CBA constitutes a âdefenseâ that does not give rise to preemption under the LMRA or create a federal question. See, e.g., Townsend v. Brinderson Corp., No. CV 14-5320 FMO (RZx), 2014 WL 3694142, *4 (C.D.Cal. July 23, 2014) (âBrinderson contends that these claims are nonetheless âpreempted by Section 301 because the Court must analyze and interpret the CBA to determine, inter alia, whether its comprehensive grievance and arbitration provisions extend to Defendants BP America, Inc., and BP Corporation North America, Inc., despite the fact that the BP Defendants are not themselves parties to the CBA.â Brindersonâs contention is unpersuasive .... Brinderson (and presumably the BP defendants) are merely relying upon the CBA to mount its defenses, which is insufficient for preemption purposes,â citing Dall v. Albertsonâs Inc., 234 Fed.Appx. 446, 449 (9th Cir.2007) (Unpub.Disp.) (âBecause [defendants] are looking to the Settlement Agreementâs arbitration and release provisions in âmounting their defenses,â there is no preemption
(5) Conclusion Regarding § 301 Preemption
For the reasons stated, the court concludes that Vasserman has alleged claims that arise under state law, rather than the CBAs that governed her employment and that of putative class members,, and that resolution of her claims will not substantially depend on interpretation of those agreements. Accordingly, the court lacks federal question jurisdiction.
3. CAFA Jurisdiction
a. Legal Standard Governing CAFA Jurisdiction
In 2005, Congress enacted the Class Action Fairness Act of 2005, Pub.L. No. 109-2, 119 Stat. 4. CAFA gives district courts original jurisdiction to hear class actions âin which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,â and âin which [, inter alia,] any member of a class of plaintiffs is a citizen of a State different from' any defendant.â 28 U.S.C. § 1332(d)(2); see also Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031, 1033-34 (9th Cir.2008) (âThe Class Action Fairness Act of 2005, § 4(a), 28 U.S.C. § 1332(d)(2), amended the requirements for diversity jurisdiction by granting district courts original jurisdiction over class actions exceeding $5,000,000 in controversy where [the citizenship of] at least one plaintiff is diverse from at least one defendant. In other words, complete diversity is not required. CAFA also provided for such class actions to be removable to federal court. See 28 U.S.C. § 1453(b). CAFA was enacted, in part, to ârestore the intent of the framers of the United States Constitution by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction.â Pub.L. No. 109-2, § 2(b)(2), 119 Stat. 4, 5 (codified as a note to 28 U.S.C. § 1711)â).
Under CAFA, the number of members of all proposed classes must exceed 100 in the aggregate. 28 U.S.C. § 1332(d)(5)(B). See also Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1020-21 (9th Cir.2007) (âAs a threshold matter, CAFA applies to âclass actionâ lawsuits where the aggregate number of members of all proposed plaintiff classes is 100 or more persons and where the primary defendants are not âStates, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief.â § 1332(d)(5).... Once the prerequisites of § 1332(d)(5) are satisfied, CAFA vests federal courts with âoriginalâ diversity jurisdiction over class actions if (1) the aggregate amount in controversy exceeds $5,000,000, and (2) any class member is a citizen of a state different from any defendant. § 1332(d)(2)â); id. at 1021 n. 3 (âThe Fifth Circuit characterized § 1332(d)(5) as an âexceptionâ to CAFA jurisdiction conferred under § 1332(d)(2).... We view § 1332(d)(5) somewhat differently....
The Ninth Circuit has confirmed that CAFA does not disturb the traditional rule that the burden of establishing removal jurisdiction is on the proponent of federal jurisdiction. Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir.2006) (âWe ... hold that under CAFA the burden of establishing removal jurisdiction remains, as before, on the proponent of federal jurisdictionâ).
b. Whether the Court Has Jurisdiction Under CAFA
(1) Whether the Numerosity Requirement is Satisfied
As noted, under CAFA, the number of members of all putative classes must exceed 100 in aggregate. 28 U.S.C. § 1332(d)(5)(B). In its notice of removal, Newhall Memorial proffers Puleoâs declaration to show that this requirement is satisfied. Puleo, who, as noted, is Newhall Memorialâs Vice Present and Chief Human Resources Officer,
(2) Whether the Minimal Diversity Requirement is Satisfied
Vasserman asserts that Newhall Memorial has failed to adduce sufficient evidence showing that CAFAâs minimal diversity requirement is satisfied.
In support of removal, Newhall Memorial proffered the declarations of Rolando Bergado and Angela Watkins, two former non-exempt hourly employees who worked for it in California during the class period.
Vasserman argues that Bergado and Watkins are not members of any putative class.
Vasserman seeks to represent five classes of non-exempt employees who worked at Newhall Memorial during the class period:
Class 1: All hourly non-exempt employees of Newhall Memorial who worked more than eight (8) hours in a day or more than forty (40) hours in a week from four (4) years before filing of this action through the date of judgment and were not paid proper overtime and double time wages (âPay Plan Classâ);
Class 2: All hourly non-exempt employees who worked for Newhall Memorial at some point from four (4) years before filing of this action through the date of judgment, and who are no' longer employed with Newhall Memorial (âWaiting Time Penalty Classâ);
Class S: All non-exempt hourly employees who worked for Newhall Memorial from four (4) years before filing of this action through the date of judgment who were subjected to Newhall Memorialâs meal period policies and practices (âMeal Break Classâ);
Class D All non-exempt hourly employees who worked for Newhall Memorial from one (1) year before filing of this action through the date of judgment who were provided a paystub, i.e., wage statement, from Newhall Memorial (âPay Stub Classâ);
Class 5: All non-exempt hourly employees who worked for Newhall Memorial from four (4) years before filing of this action through the date of judgment, who were subject to Newhall Memorialâs rounding policy and practice (âRounding Classâ).108
As noted, both Bergado and Watkins were non-exempt hourly employees who
(3) Whether the Amount in Controversy Requirement is Satisfied
(a) Legal Standard Governing the Amount in Controversy Under CAFA
Vasserman next contends that Newhall Memorial has failed to establish that the amount in controversy exceeds $5,000,000.
(b) Whether Newhall Memorial Has Established by a Preponderance of the Evidence that the Amount in Controversy Requirement is Met
i) Newhall Memorialâs Estimate of Potential Class Damages
Newhall Memorialâs estimate of the amount in controversy addresses five types of relief sought in Vassermanâs complaint:
*970 No. Claim Newhall Memorialâs Estimated Amount
___in Controversy111 _
1, Unpaid Overtime_$8,267,903_
2, Waiting Time Penalties_$2,164,140_
3, Penalties under § 226 for Failure to $3,878,350
_Provide Accurate Wage Statements_
4, Missed Meal Periods_$9,183,758_
5, Penalties under PAGA_$8,021,900_
TOTAL$31,516,051
In estimating the value of the class claims, Newhall Memorial has calculated the potential recovery for unpaid overtime and meal period claims for the four-year class period alleged in the complaint; it has assumed, by contrast, that a one-year limitations period applies to claims under Labor Code § 226 and PAGA.
a) Unpaid Overtime Claim
In estimating that the class might recover as much as $8,267,903 on its unpaid overtime claim, Newhall Memorial first approximated the number of putative class
proximately 45% of the putative class worked under the 10/40 or 12/36 overtime plans.
Using the â45% of putative class member[s] [who] work[ed] shifts that are over 8 hours but are not paid âdaily overtimeâ â for hours in excess of eight hours, Newhall Memorial assumed that each class member worked eight hours of âdaily overtimeâ per pay periodâ during the entire class period. Because Puleo states that class members collectively worked 140,039 pay periods during the class period and Vasserman alleges that the class members were only paid straight time for hours in excess of eight per day,
California Labor Code § 203(a) states in relevant part: âIf an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor, is commenced; but the wages shall not continue for more than 30 days.â
In estimating the potential class recovery on Vassermanâs waiting time penalties claim under § 203, Newhall Memorial âas-sum[ed] each terminated employee worked 8 hours per day,â
c) Penalties under Labor Code § 226
California Labor Code § 226(a) provides that â[e]very employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees ... an accurate itemized statement in writing showing (1) gross wages earned; (2) total hours worked by the employee ... (5) net wages earned, ... (8) the name and address of the legal entity that is the employer, ... and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.â Section 226(e) provides that â[a]n employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000).â
In calculating a potential class recovery of $3,878,350 on this claim, Newhall Memorial assumed that each of the 1,583 putative class members it has employed since June 18, 2013, would be entitled to recover for violations each pay period, i.e., every two weeks from June 18, 2013 until the date of removal, August 8, 2014.
âAs there are approximately 1,583 putative class members who have been employed from June 18, 2013 until August 8, 2014 (the date of removal) who have worked over 80,000 work weeks, each employee has worked an average of approximately 51 work weeks (80,000/1,583 = 51). (Puleo Deck ¶ 5.) Employees are paid every two weeks. .(Puleo Deck, ¶ 6.) Thus, during the one-year statute of limitations, employees have received an average [of] more than 25 paychecks. Thus, the amount in controversy would be $79,150 for the alleged initial viola*973 tions ($50 x 1,583 employees). The amount in controversy for the 24 subsequent alleged violations would be $3,799,200 ($100 x 1,583 employees x 24).â129
As can be seen, Newhall Memorial assumed a 100 percent violation rate â i.e., that every putative class member received an inaccurate wage statement every pay period during the limitations period. Newhall Memorial adduces no evidence supporting this assumption.
d) Meal Period Claim
In estimating that the missed meal period class could recover total damages of $9,183,758, Newhall Memorial âassume[d] [ ] two missed meal periods per pay period.â
As with Newhall Memorialâs other calculations, its estimate of meal period damages under Labor Code § 226.7 relies on an assumption that every class member missed two meal periods each pay period during the class period. Like Newhall Memorialâs assumption that each class member worked eight hours of daily overtime per week, the suggestion that each class member missed two meal breaks per pay period is entirely speculative and unsupported.
e) PAGA Penalties
The Private Attorneys General Act (âPAGAâ) provides for the recovery of civil penalties for violations of the California Labor Code. See Cal. Lab.Code § 2699(f). The Act states, in relevant part:
âFor all provisions of this code except those for which a civil penalty is specifically provided, there is established a civil penalty for a violation of these provisions as follows:
(1) If, at the time of the alleged violation, the person does not employ one or more employees, the civil penalty is five hundred dollars ($500).
(2) If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars' ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation.
(3) If the alleged violation is a failure to act by the Labor and Workplace Development Agency, or any of its departments, divisions, commissions, boards, agencies, or employees, there shall be no civil penalty.â Id. (emphasis added).
In calculating class PAGA penalties, Newhall Memorial assumed that the 1,583 putative class members who were employed since June 18, 2013 would be able to recover PAGA penalties each pay period on each of Vassermanâs Labor Code claims.
In reaching its calculation of the amount in controversy related to Vassermanâs PAGA claim, Newhall Memorial again assumes a 100 percent violation rate, calculating PAGA penalties for each of 40,901 pay periods without proffering any evidence to support such an assumption.
Although other courts have reached the opposite result,
As the Pulera court noted, however, concluding that employeesâ ' individual rights should be aggregated does not compel aggregation of their rights with those of a state agency, the LWDA. Citing Troy Bank of Troy, Ind. v. G.A. Whitehead & Co., 222 U.S. 39, 40, 32 S.Ct. 9, 56 L.Ed. 81 (1911), the Pulera court observed that the âcommon and undivided interestâ exception relies on the notion that âneither [party] can enforce [the claim] in the absence of the other.â Pulera, 2008 WL 3863489 at *3. Under PAGA, â[h]owever, the LWDA can choose to enforce those claims itself, regardless of the employeeâs involvement,â just as employees can, if the LWDA approves, sue without any direct involvement by the agency. The statute thus permits either the LWDA or the aggrieved employees to act independently to enforce the Labor Code. Id. This cuts against aggregating the agencyâs claims with the employeesâ claims, even if the employeesâ individual claims should be aggregated under the âcommon and undivided interestâ exception. Consequently, the court concludes that only 25% of the recovery possible on the cause of action can be included in calculating the amount in controversy on the PAGA claim. As a result, Newhall Memorialâs calculation of the amount in controversy on Vassermanâs PAGA claim is significantly overstated in addition to being based on speculative assumptions.
ii) Whether the Assumptions on Which Newhall Memorialâs Calculation is Based Are Supported by âSummary Judgment Type Evidenceâ
As noted, Newhall Memorial asserts the amount in controversy is $31,516,051 â well above the jurisdictional threshold. Vas-serman contends, however, that Newhall
Specifically, Vasserman argues that key variables used in Newhall Memorialâs calculations are not based on summary judgment-type evidence.
âThe only evidence the defendants proffer to support their calculation of the amount in controversy is a declaration by their supervisor of payroll, which sets forth only the number of employees during the relevant period, the number of pay periods, and general information about hourly employee wages. Beyond this, the defendants rely on speculative and self-serving assumptions about key unknown variables. The district court âącorrectly concluded that Archstoneâs evidence was insufficient to support removal jurisdiction under CAFA.â
Newhall Memorial has proffered credible evidence regarding the size of the class, the number of former employees who are potential class members, the number of class members during the one year prior to the filing of the complaint, the percentage of class members who worked under each overtime plan, the average hourly rate of pay, and the number of pay periods and work weeks in the class period.
First, Newhall Memorial assumed that the 45 percent of class members who worked under the 10/40 and 12/36 overtime plans worked an average of eight hours of âdaily overtimeâ per week.
Newhall Memorial simply provides no explanation as to why it selected a figure of eight hours of overtime per pay period. It does not adduce evidence concerning the average hours worked by putative class members under the two plans iii a given week, or any other evidence that could support a finding that its assumption of eight hours of overtime per pay period is reasonable. Rather, its assumption that 45 percent of the class worked an average of eight hours of overtime per pay period is speculative and unsupported. Thus, its. calculation of the amount in controversy on Vassermanâs overtime claim is speculative and unreliable as well. See Smith, 2010 WL 1838726 at *3 (âThe complaint does not quantify the number of overtime hours that are allegedly subject to compensation, nor the number of meal and rest periods that defendants allegedly failed to provide. Defendants provide no sufficient basis to apply the assumption of 2.5 overtime hours each day towards calculating the amount in controversy. The court may not base
Second, Newhall Memorial assumed that all class members were denied meal periods two times per pay period.
Third, Newhall Memorialâs calculation of waiting time penalties presumes that each of the 275 class members who separated from Newhall Memorial during the class period did not receive the wages he or she was due for a full thirty days. Newhall Memorial does not explain why such an assumption is warranted, and neither the allegations in the complaint nor evidence support using such a variable. Vasserman alleges that âeach member of the class[] that no longer works for Defendant, and who was not timely paid is entitled to one (1) day of pay in penalties for each day that he or she was paid late, until payment was made, up [to] a maximum of thirty (30) days.â
Similarly, Newhall Memorial assumes that every wage statement class members received during the limitations period was inaccurate. Vassermanâs allegations, however, suggest only that some wage statements during the class period were inaccurate; she pleads that â[djuring the Class Period, [defendant knowingly and intentionally failed to provide the [c]lass Members, including [p]laintiff, with timely and accurate wage and hour statements.â
Absent evidence or allegations supporting the reasonableness of such an assumption, Newhall Memorialâs use of a 100 percent violation rate is speculative and unsupported. Consequently, the court cannot credit its calculation of the potential recovery on Vassermanâs § 226 claim. See Be Leon v. NCR Corp., No. C 12-01637 SBA, 2013 WL 503092, *4 (N.D.Cal. Feb. 8, 2013) (âThe Court cannot credit Defendantâs damages calculation because it is predicated on an assumption that has no basis either in the complaintâs plain language or in any âsummary-judgment-typeâ evidence. The complaint does not allege that every customer engineer that worked for Defendant during the relevant one-year period received inaccurate wage statements every pay period. Nor has Defendant submitted any concrete evidence demonstrating ... that each of the 192 putative class members
For similar reasons, Newhall Memorialâs calculation of PAGA penalties is unsupported because, it is premised on the unsupported inference that each putative class member employed since July 18, 2013, had his or her rights under the Labor Code violated every pay period. New-hall Memorial simply does not proffer sufficient evidence from which the court can conclude that such an assumption is warranted.
In sum, many of the assumptions that are key to Newhall Memorialâs damages calculations are not supported by summary judgment-type evidence. See Korn v. Polo Ralph Lauren Corp., 536 F.Supp.2d 1199, 1205 (E.D.Cal.2008) (â[A] defendant must set forth the underlying facts supports its assertion that the amount in controversy exceeds the statutory minimumâ); Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 993, 1001 (C.D.Cal.2002) (âIf the amount in controversy is not clear on the face of the complaint, ... defendant must do more than point to a state law that might allow recovery above the jurisdictional minimumâ). Accordingly, the court concludes that Newhall Memorial has not proffered sufficient evidence to demonstrate that the amount placed in controversy by Vassermanâs complaint exceeds $5,000,000.
iii) Whether Newhall Memorial Can âAssumeâ Violation Rates to Fill in Gaps in Vassermanâs Broad Allegations
As the court has found that several of the assumptions on which Newhall Memorialâs damages estimate is based are not supported by summary-judgment-type evidence, the. analysis suggested by Singer for determining the amount in controversy on removal would appear to be at an end. 116 F.3d at 377. See Harrington v. Mattel, Inc., No. C07-05110 MJJ, 2007 WL 4556920, *3 (N.D.Cal. Dec. 20, 2007) (âBecause it is not clear from the face of the complaint if the jurisdictional amount in controversy is met, Defendants have the burden to prove, by a preponderance of the evidence, that the amount exceeds $5 million,â citing Matheson, 319 F.3d at 1090).
In evaluating whether it is âmore likely than notâ that wage-and-hour claims exceed the jurisdictional threshold, however, California district courts have disagreed as
When applying the preponderance of the evidence standard to California Labor Code claims, many California district courts have refused to credit damage calculations based on variables not clearly suggested by the complaint or supported by evidence, concluding that the defendantâs calculations are mere conjecture. In Martinez v. Morgan Stanley, for example, defendants sought to remove a wage- and-hour class action under CAFA and calculated the amount in controversy based in part on an assumption that every class member worked four hours of unpaid overtime every day. 2010 WL 3123175 at *5. The court rejected this assumption and the calculation of potential class damages based on it, stating that â[although Plaintiff alleged that her claims are typical of the class as a whole and that class members consistently worked overtime, this does not provide a basis to assume that ever class member worked any particular number of overtime hours.â Id. The court similarly rejected the calculation of meal/ rest period violations, waiting time penalties, and wage statement penalties because the variables used were not clearly suggested by the complaint or supported by evidence. Id. at *6. See also Smith, 2010 WL 1838726 at *5 (âBecause defendantsâ calculation of damages for alleged overtime and missed meal and rest periods is speculative and based on conjecture, the court limits the calculation of the amount in controversy to the reasonably certain amount of statutory penalties that could be claimedâ); Verner v. Swiss II, LLC, No. CV 09-5701 PA (CTx), 2010 WL 99084, *3 (C.D.Cal. Jan. 6, 2010) (âIn its Notice of Removal, Defendant alleges that because the First Amended Complaint alleges that Defendant âconsistentlyâ violated Californiaâs wage and hour laws by failing to provide meal and rest periods, the amount in controversy is Plaintiffs hourly wage times 250 work days per year times three meal and rest break premiums per day times four years. Nothing in the First Amended Complaint or the Notice of Removal supports a conclusion that the amount in controversy is three premiums for each day worked for the last four years. Defendant has no âsummary-judgment type evidenceâ to support its calculation of the amount in controversy for the unpaid meal and rest breaksâ).
Other California district courts, however, have relied on calculations of wage and hour claims that utilized assumed variables where the complaint did not provide a basis for clear calculation. See, e.g., Gardner v. GC Servs. LP, No. 10-CV-997-IEG (CAB), 2010 WL 2721271, *3 (S.D.Cal. July 6, 2010) (crediting defendantâs overtime calculation based solely on evidence regarding the number of potential class members, and stating â[ajccording to Defendant, if those employees, earning on average $14.50 per hour, worked 30 minutes of overtime per day over four years, the unpaid overtime owed on the overtime claim would exceed $3,000,000â); Lippold v. Godiva Chocolatier, Inc., No. C 10-
Several of these courts focused on the fact that plaintiff is the âmaster of the complaint,â and commented that plaintiffs could choose to limit their damage claims. See Muniz, 2007 WL 1302504 at *4 (â[P]laintiff includes no fact-specific allegations that would result in a putative class or violation rate that is discernibly smaller than 100%, used by defendant in its calculations. Plaintiff is the âmaster of [her] claimfs],â and if she wanted to avoid removal, she could have alleged facts specific to her claims which would narrow the scope of the putative class or the damages sought,â citing Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425). See also Coleman, 730 F.Supp.2d at 1150 (âPlaintiff only broadly alleges his wage-and-hour violations.... Plaintiff included no limitation on the number of violations, and, taking his complaint as true, Defendants could properly calculate the amount in controversy based on a 100% violation rateâ).
The court finds the latter group of cases unpersuasive, however, as they improperly shift the burden to plaintiff to refute speculative assertions of jurisdiction and establish that there is no jurisdiction. See Abrego Abrego, 443 F.3d at 685 (âWe ... hold that under CAFA the burden of establishing removal jurisdiction remains, as before, on the proponent of federal jurisdictionâ). Plaintiffs are not required affirmatively to deny speculative calculations of the amount in controversy to avoid removal. See Smith, 2010 WL 1838726 at *4 (âDefendants suggest that plaintiffs have not submitted evidence to dispute defendantsâ estimates, but plaintiffs do not bear the burden to demonstrate the amount in controversyâ). Indeed, at this early stage of the litigation, neither side may be able to calculate potential damages reliably.
Moreover, by crediting speculative estimates of the amount in controversy,
It is, of course, true that a removing defendant is not responsible for âconducting] a fact-specific inquiry into whether the rights of each and every potential class member were violated,â answering âthe ultimate question the litigation presents,â or âtry[ing] the case [itself] for the purposes of establishing jurisdiction.â Bryan v. Wal-Mart Stores, Inc., No. C 08-5221 SI, 2009 WL 440485, *3 (N.D.Cal. Feb. 23, 2009). Nonetheless, in evaluating whether a party has met its burden of proof with respect to jurisdiction, several circuits have held that it is proper for district courts to consider which party has access to or control over the records and information required to determine whether the amount in controversy requirement is met. See, e.g., Amoche v. Guarantee Trust Life Insurance Co., 556 F.3d 41, 51 (1st Cir.2009) (â[Deciding whether a defendant has shown a reasonable probability that the amount in controversy exceeds $5 million may well require analysis of what both parties have shown.... In the course of that evaluation, a federal court may consider which party has better access to the relevant information. See Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 n. 3 (11th Cir.2006) (âDefendants have better access to information about conduct by defendants, but plaintiffs have better access to information about which plaintiffs are injured and their relationship to various defendantsâ)â); Brill v. Countryivide Home Loans, Inc., 427 F.3d 446, 447-48 (7th Cir.2005) (âThat the proponent of jurisdiction bears the risk of non-persuasion is well established.... Whichever side chooses federal court must establish jurisdiction; it is not enough to file a pleading and leave it to the court or the adverse party to negate jurisdiction.... And the rule makes practical sense. If the burden rested with the proponent of remand, then Countrywide could have removed without making any effort to calculate its maximum exposure, and without conceding that it had faxed thousands of ads. That would have thrown on Brill the burden of showing that Countrywide could not possibly have sent more than 3,333 junk faxes.... Brill would have no way to show this early in the litigation, and plaintiffs in other kinds of suits would encounter similar difficulty. When the defendant has vital knowledge that the plaintiff may lack, a burden that induces the removing party to come forward with the information â so that the choice between state and federal court may be made accurately â is much to be desiredâ).
Here, Newhall Memorial is in the best position to adduce evidence regarding the working hours and wages of its non-exempt, hourly employees. In support of its notice of removal, Newhall Memorial could have conducted a sampling or other analysis to- show that it was more likely than not that many of its employees covered under the various overtime plans worked more
For the reasons stated, the court grants Vassermanâs motion to remand and denies Newhall Memorialâs motion to dismiss at moot.
. Notice of Removal (â'Removalâ), Docket No. 1 (Aug. 8, 2014), Exh. 1 ("Complaintâ).
. Removal at 2-7.
. Id. at 3.
. Notice of Motion and Motion to Remand Case to Los Angeles Superior Court ("Motion to Remandâ), Docket No. 13 (Sept. 8, 2014).
. Notice of Motion and Motion to Dismiss Case ("Motion to Dismissâ), Docket No. 14 (Sept. 8, 2014).
. Order Regarding Briefing Schedules on Defendantâs Motion to Dismiss or Strike and Plaintiff's Motion to Remand, Docket No. 18 (Oct. 7, 2014).
. Memorandum in Opposition to Motion to Remand Case to Los Angeles Superior Court ("MTR Opp.â), Docket No. 19 (Nov. 3, 2014).
. Plaintiff's Opposition to Defendant's Motion to Dismiss Plaintiffâs Complaint, or Alternatively, to Strike Plaintiff's Prayer for Declaratory Relief ("MTD Opp.â), Docket No. 20 (Nov. 3, 2014).
. Complaint, ¶ 27.
. Id.., ¶ 17.
. Id., ¶27.
. Id., ¶¶ 27, 46.
. Id., ¶ 28.
. Id.
. Id., ¶¶ 28-29.
. Id., ¶ 30.
.Id.
. Id., ¶ 71.
. Id.
. Id., ¶ 32.
. Id., ¶¶33, 66.
. Id., ¶ 34.
. Id., ¶92.
. Id., ¶ 37.
. Id., ¶ 18.
. Id.,Ti 24-44.
. Id.,n 45-56.
. Id., ¶¶ 57-63.
. Id., ¶¶ 64-69.
. Id., ¶¶ 70-73.
. Id., ¶¶ 74-83.
. Id.,n 84-99.
. Request for Judicial Notice in Support of Plaintiffâs Motion to Remand to State Court ("PLâs RJNâ), Docket No. 13-5 (Sept. 8, 2014); Request for Judicial Notice in Support of Reply in Support of Motion to Remand Case to Los Angeles Superior Court ("PLâs Reply RJNâ), Docket No. 21-1 (Nov. 21, 2014).
.Defendant's Request for Judicial Notice in Support of its Motion to Dismiss Plaintiff's Complaint, or in the Alternative, to Strike Plaintiff's Prayer for Declaratory Relief ("Def.âs RJNâ), Docket No. 14-1 (Sept. 8, 2014); Defendant's Request for Judicial Notice in Support of its Reply to Plaintiffsâ Opposition to Defendantâs Motion to Dismiss Complaint (â'Def.âs Reply RJNâ), Docket No. 22-1 (Nov. 21, 2014).
. PL's RJN, Exh. 1.
. Pl.âs Reply RJN, Exh. 1.
. Def.âs Reply RJN, Exh. A.
. Def.âs Reply RJN, Exh. B.
. Def.'s RJN, Exh. A.
. Id., Exh. B.
. See Plaintiff's Objections to Declarations Filed in Support of Defendant's Notice of Removal ("Objectionsâ), Docket No. 13-4 (Sept. 8, 2014).
. Id. at 2-6; see Declaration of Mark Puleo in Support of Defendantâs Notice of Removal ("Puleo Decl.â), Docket No. 1-2 (Aug. 8, 2014).
. See Puleo Decl., ¶ 3 ("According to the Company's records, Plaintiff Tanya Vasser-man ('Plaintiff') was employed by Henry Mayo from March 10, 2014 to April 3, 2014â).
. See id., ¶ 4 ("According to the records maintained by the Company, Henry Mayo has employed approximately 2,530 non-exempt employees in the State of California since June 18, 2010. According to the records maintained by the Company, such persons have received approximately 140,039 paychecks during that time and have had an average hourly rate of pay of $32.39â).
. See id., ¶ 5 ("Plaintiff and the persons she seeks to represent in this lawsuit have been represented by two unions during the period of time for which Plaintiffâs Complaint seeks relief. Specifically, Plaintiff and some other employees were represented by the California Nurses Association ('CNA'). Other employees who Plaintiff seeks to represent were represented by the United Electrical, Radio & Machine Workers of America ('UE')â).
. See id., ¶ 6 (âHenry Mayo and the two unions have negotiated several CBAs during the time for which Plaintiff seeks relief. True and correct copies of the CBAs with CNA are attached hereto as Exhibits A and E. True and correct copies of the CBAs with UE are attached hereto as Exhibits C and Dâ).
. See id.., ¶ 7 ("The CBAs attached hereto as Exhibits A-D contain grievance and arbitration provisionsâ).
. Id., ¶¶ 4-5.
. Objections at 3-5.
. Id. at 6.
. Puleo Decl., ¶ 7.
. Declaration of Angela Watkins in Support of Notice of Removal ("Watkins Decl."), Docket No. 1-8 (Aug. 8, 2014).
. Declaration of Rolando Bergado in Support of Notice of Removal ("Bergado Decl.â), Docket No. 1-7 (Aug. 8, 2014).
. See Objections at 6-10.
. See Watkins Decl., ¶ 3 ("Although I .was employed by Henry Mayo in California, I do not currently reside there and it is not my intention to reside there").
. See id., ¶ 4 ("In fact, I moved to Maryland in January 2014 then recently moved to Indiana [on] July 4, 2014, and it is my intention to continue to reside in the State of Indiana indefinitely. I am in the process [of] obtaining] my driverâs license in Indiana and I plan on registering to vote there. After [my] divorce, [m]y personal belongings are in Maryland").
. See id., ¶ 5 ("The above statements were true on June 18, 2014, and they continue to be true todayâ).
. See Bergado Decl., ¶ 3 ("Although I was employed by Henry Mayo in California, I do not currently reside there and it is not my intention to reside thereâ); id., ¶ 4 ("In fact, I have lived in the State of Illinois since April 2013, and it is my intention to continue to reside in the State of Illinois indefinitely. I have had an Illinois driverâs license since June 7, 2013, and I am not registered to vote in the United States. My personal belongings are in Chicago, Illinoisâ); id., 115 ("The above statements were true on June 18, 2014, and they continue to be true todayâ).
. Objections at 6-10. Vasserman lists a number of additional objections to Watkinsâ and Bergado's statements: (1) hearsay under Rules 801 and 802 of the Federal Rules of Evidence; (2) lack of authentication under Rule 901; (3) unqualified expert opinion under Rules 701, 702, and 704; and (4) lack of foundation under Rule 602. {Id.) As Vasserman provides no argument or explanation of the basis for these objections, the court overrules them.
. It is not enough for removal purposes that a federal question may arise in connection with a defense or counterclaim. "[F]ederal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.â Cateipillar, 482 U.S. at 392, 107 S.Ct. 2425. See also Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908). "A defense is riot part of a plaintiff's properly pleaded statement of his or her claim.â Rivet v. Regions Bank of La., 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). See also Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Thus, "a case may not be removed to federal court on the basis of a federal defense, ... even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case.â Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).
. The Supreme Court in Livadas held that the state law claim asserted in that case required only that the court "look toâ the CBA to determine the applicable rate of pay. It concluded the fact that there was "no indication ... there was a 'dispute' " regarding the rate of pay "foreclose[d] even a colorable claimâ of preemption. Livadas, 512 U.S. at 124-25, 114 S.Ct. 2068.
.Although Vasserman does not specify the section of the Labor Code under which she seeks waiting time penalties, given the substance of her allegations, she likely seeks waiting time penalties under California Labor Code § 203. (Compare Complaint, ¶ 59 ("Plaintiff and other former employees of Defendant employed in the State of California separated from employment with Defendant. Plaintiff and all others similarly situated did not timely receive a final pay check from Defendant in violation of Labor Code §§ 200 et seq. Plaintiff is informed and believes and thereon alleges that Defendant also violated the mandates of Labor Code §§ 200 et seq., as to other employees whose employment ended during the period of time covered by this action)); id., ¶ 60 (âPursuant to Labor Code §§ 200 et seq., each member of the classes that no longer works for Defendant, and who was not timely paid is entitled to one (1) day of pay in penalties for each day that he or she was paid late, until payment was made, up [to] a maximum of thirty (30) daysâ) with Cal. Lab. Code § 203(a) (âIf an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days....â). Accordingly, the court treats Vasserman's claim for waiting time penalties as a claim for violation of Labor Code § 203.
. Complaint, ¶¶ 24-99.
. Motion to Remand at 6-7.
. Complaint, ¶¶ 27-28.
. Remand Opp. at 7-8.
. Plaintiffs Reply in Support of Plaintiff's Motion to Remand ("MTR Replyâ),' Docket No. 21 (Nov. 21, 2014) at 10.
. See, e.g., Complaint, ¶¶ 45-56.
. PL's Reply RJN, Exh. 1.
. See, e.g., id., Exh. B at 26 ("8 & 40 Overtime Plans: For any Nurse assigned to the 8 & 40 Overtime Plan, for any time worked by that Nurse in excess of eight (8) hours in any one work day, that Nurse shall be paid at the premium rate of one and one-half times the sum of that Nurseâs Base Hourly Pay Rate and any differential to which that Nurse is entitled pursuant to this Agreement, or to which the Hospital has assigned that Nurse as a management right pursuant to the Management Rights provisions of this Agreement; for any Nurse assigned to the 8 & 40 Overtime Plan, for any time worked by that Nurse in excess of twelve (12) hours in any one work day, that Nurse shall be paid at a premium rate of two times the sum of that Nurseâs Base Hourly Pay Rate and any differential to which that Nurse is entitled pursuant to this Agreement or to which the Hospital has assigned that Nurse as a management âą right pursuant to the Management Rights provisions of, this Agreement; for any nurse assigned to the 8 & 40 overtime Plan, for any time worked by that Nurse in excess of forty (40) hours in any one week pay period, that Nurse shall be paid at the premium rate of one and one-half -times the sum of that Nurse's Base Hourly Pay Rate and any differential to which that Nurse is entitled pursuant to this Agreement or to which the Hospital has assigned that Nurse as a management right pursuant to the Management Rights provision of this Agreement. (For the purpose of calculating time worked in excess of 40 hours in any one week pay period, to prevent compounding of overtime the total amount of time worked for that one week pay period shall be reduced by the total amount of time worked in excess of 8 hours in each work day within that one week pay period)â); id., Exh. B at 27 (â10 & 40 Overtime Plan: For any Nurse assigned to the 10 & 40 Overtime Plan, for any time worked by that Nurse in excess of ten (10) hours in any one work day, that Nurse shall be paid at a premium rate of two times the sum of that
. See Puleo Opp. Deck, Exh. B at 26-29.
. In Coria v. Recology, Inc., 63 F.Supp.3d 1093, 2014 WL 3885873 (N.D.Cal. Aug. 7, 2014). There, Judge James Donato concluded that plaintiffs meal period and overtime claims were preempted by § 301 because the meal period claim for violation of Labor Code § 512(a) was subject to the exemption set forth in § 512(e) for employees governed by a valid CBA, and the overtime claim .under § 510 was subject to the statutory exemption set forth in § 514. Id. at 1096-99, at *2-4. Judge Donato distinguished Gregory on the basis that plaintiffâs overtime claim was based on the CBA and that, even if it did not, it was ''substantially dependent uponâ an analysis of that agreement. Id. at 1100 n. 1, at *5 n. 1. Here, unlike in Coria, Vasserman's allegations make clear that her overtime claim is based on state law rights, not on the CBAs. See Coria, 63 F.Supp.3d at 1098-1100, 2014 WL 3885873 at *4-5. More fundamentally, as noted, the CBAsâ overtime provisions are clear and will not require interpretation to determine if the § 514 exemption applies.
. Vasserman contends that the provisions of the CBAs indicate that § 514 does not apply. Newhall Memorial asserts that the mere fact she makes this argument shows that the court must analyze and interpret the terms of the CBAs to determine if the statutory exemption applies. (MTR Opp. at 8-14.) The court is similarly not persuaded by this argument.
. Id. at 9.
. Motion to Remand at 10-11.
. MTR Opp. at 9-10.
. The court finds no merit to Vasserman's contention that Article 18 demonstrates that the CBAs do not "expressly provideâ for employee wages. (Motion to Remand at 10-11.) If it is determined that education leave time is compensable, which as noted requires interpretation of state law rather than the CBAs, the agreement clearly provides the wage the employee on leave will be paid. Specifically, it provides for up to âtwenty (20) hours straight time [pay] per calendar yearâ for full-time Nurses and up to âtwelve (12) hours straight time [pay] per calendar yearâ for part-time Nurses.â (Puleo Opp. Deck, Exh. B at 40.) Moreover, as discussed, the CBAs
. MTR Opp. at 10-11.
. Id.
. Puleo Opp. Decl., Exh. B at 28-29.
. MTR Opp. at 11-13.
. Motion to Remand at 11-12.
. Id. The court is also unpersuaded by Vas-serman's arguments that Article 14, Section I shows that § 514 does not apply. (See Motion to Remand at 11-12.) Vasserman's argument that Section I does not provide hourly rates that are thirty percent above Californiaâs minimum wage rates because it does not provide wages for de minimis work ignores the explicit terms of the CBAs, which provide that all substantive time worked will be compensated at the Nurseâs Base Hourly Rate, which it is indisputably more than 30 percent above the state minimum wage. (See Puleo Opp. Deck, Exh. B at 28-29, 68-70.) This will not change even if de minimis time is compensa-ble as Vasserman appears to assert. Vasser-man's argument that the CBAs do not provide premium wage rates for all overtime hours worked is similarly unavailing because the three overtime plans provide premium pay if the "hours actually workedâ in a single day exceed 8, 10, or 12 hours, or if the hours worked in a single week exceed 36 or 40 hours. (See id., Exh. B at 26-28.) To the extent that time actually worked on-call exceeds these thresholds, the CBAs make it clear that the employee will receive premium pay.
. Vranish v. Exxon, Mobil Corp., 223 Cal.App.4th 103, 166 Cal.Rptr.3d 845 (2014), a case on which Newhall Memorial relies, likewise does not compel the conclusion that interpretation of the CBAs will be required. In Vranish, plaintiffs argued that they had not been paid a premium wage and § 514 did not apply because, although the CBA under which they were covered, provided for the payment of a premium wage, it did not define that term as it was defined in Labor Code § 510. Id. at 110, 166 Cal.Rptr.3d 845. The Vranish court, of course, was not analyzing federal preemption, and indeed, distinguished Gregory, 317 F.3d 1050, on that very basis. Vranish, 223 Cal.App.4th at 110 n. 3, 166 Cal.Rptr.3d 845. Consequently, the court finds Vranish inapposite.
. MTR Opp. at 14-16. Newhall Memorial does not challenge in its opposition Vasser-manâs assertion that her meal period claim arises under rights created by state law.
. Id. at 15.
. See generally Complaint, ¶¶ 70-73; see, e.g., id., ¶ 72 ("Defendant failed to provide, impeded, and/or discouraged Plaintiff and others from taking timely meal breaks of not less than thirty (30) minutes as required by the Labor Code during the relevant class period and/or failed to obtain legal waivers waiving the first or second meal periodâ).
.MTR Opp. at 15.
. Removal, ¶ 13.
. Id.
. MTR Opp. al 16-17.
. Id. at 16.
. See Puleo Opp. Decl. at 14, Article 12(D).
. Id.
.Id., Article 12(A).
. See Removal, Exh. 1 (Declaration of Mark Puleo in Support of Removal ("Puleo Decl.â)).
. Id.., ¶ 4.
. Vasserman does not dispute Newhall Memorialâs showing with respect to the size of the classes.
. Motion to Remand at 24.
. Remand Opposition at 18.
. Removal, ¶ 22 ("Defendant was, at the time of the filing of this action, and still is, a corporation formed under the laws of the State of California, and has its principal and only place of business in Californiaâ).
. See Declaration of Rolando Bergado in Support of Removal ("Bergado Decl.â), Docket No. 1-7 (Aug. 8, 2014); Declaration of Angela Watkins in Support of Removal ("Watkins Decl.â), Docket No. 1-8 (Aug. 8, 2014).
. Bergado Dec!., ¶¶ 2-4.
. Watkins Deck, ¶¶ 2-4.
. Id., ¶ 4.
. Motion to Remand at 24 ("Defendant admits that it is a citizen of California and thus tries to attempt minimal diversity by claiming that a Mr. Rolando Bergado and a Ms. Angela Watkins are citizens of different states. The issue here is that Defendant never offers any evidence that either Mr. Bergado or Ms. Watkins fall within the definition of the proposed class in Plaintiffâs Complaint, as required by 28 U.S.C. § 1332(d)(1)(D)â).
. Id.
. Complaint, ¶ 18.
. See Bergado Decl., ¶ 2; Watkins Deck, ¶ 2.
. Motion to Remand at 20-24.
. MTR Opp. at 20-22,
. Id.
. Id. at 20; see also Puleo Decl., ¶ 7.
. The California Supreme Court has held that "[a] three-year statute of limitations applies to [claims for wages] (Code Civ. Proc., § 338, subd. (a)) ('An action upon a liability created by statute, other than a penalty or forfeitureâ), while a one-year statute of limitations governs claims for penalties (Code Civ.Proc., § 340, subd. (a)) (âAn action upon a statute for a penalty or forfeitureâ).â Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1102, 1120, 56 Cal.Rptr.3d 880, 155 P.3d 284 (2007) (affirming use of a three-year statute of limitations for claims under California Labor Code § 226.7 for missed meal/rest periods); see also Gentry v. Superior Court, 42 Cal.4th 443, 470-71, 64 Cal.Rptr.3d 773, 165 P.3d 556 (2007) (noting that generally California Code of Civil Procedure § 338âs three-year statute of limitations applies to claims for overtime wages). If the correct three-year statute of limitations is used to calculate possible damages on Vassermanâs overtime and meal period claims, Newhall Memorialâs estimate of potential damages on the claims is overstated by a minimum of 25 percent, and perhaps by more, depending on the number of class members who were employed during the past three years as opposed to the past four years. Because the court concludes that Newhall Memorialâs calculation of the amount in controversy is not sufficiently supported on other grounds, the court need not determine whether its argument in support of removal indicates an intention to waive the limitations defense.
.Vasserman alleges that the class period for her overtime, waiting time penalty and meal period claims commenced four years prior to the filing of the complaint. (See Complaint, ¶ 18.) She may have done so because her Business and Professions Code § 17200 claim is governed by a four-year lim- â Rations period. See Cal. Bus. & Prof. Code § 17208 ("Any action to enforce any cause of action pursuant to this chapter shall be commenced within four years after the cause of action accruedâ). Although Newhall Memorial has used a four-year class period in estimating damages on Vassermanâs overtime and meal period claims, none of its calculations is based on the § 17200 claim. It thus overstates damages on the overtime and meal period claims.
. MTR Opp. at 20. .
. Declaration of Mark Puleo in Support of Newhall Memorial's Opposition to Plaintiffâs Motion to Remand ("Puleo Opp. Decl.â), Docket No. 19-1 (Nov. 3, 2014), ¶ 7.
. Id.
. Id.
. Id.
. Puleo Opp. Decl., ¶ 4.
. MTR Opp. at 20; see Puleo Opp. Deck, ¶ 4.
. MTR Opp. at 20. Newhall Memorial maintains this is a "conservative estimate as those who worked on a 12/36 plan worked 12 hours of 'daily overtime' per week.â They cite Puleo's opposition declaration in support of this fact. (Id., n. 11.) The cited portion of Puleo's declaration does not demonstrate that employees working under either the 10/40 or 12/36 plans would have worked 8 or 12 hours of "daily overtimeâ per week respectively. Puleo merely states when employees are entitled to receive premium pay under the plans in question; there is no evidence that all employees covered by those plans worked full-time. In fact, the CBAs specifically contemplate that some nurses will work part-time (see Puleo Opp. Decl., Exh. B at 19-20). Vassermanâs class, moreover, includes all hourly, non-exempt employees â both fulltime and parttime. More fundamentally, even if all class members covered by the 10/40 and 12/36 plans did work full time, the overtime totals would differ from the eight hours of overtime per pay period assumed by Newhall Memorial. Newhall Memorial provides no
. MTR Opp. at 20.
. Id.
. Puleo Opp. Deck, ¶ 7.
. MTR Opp. at 20.
. Id. at 21.
. Id. at21n. 15.
. Id. at 21.
. Id.
. MTR Opp. at 21-22.
. Id.
. Id.
. The parties dispute whether PAGA penalties can be included in the amount in controversy in assessing whether the court has jurisdiction under CAFA. Vasserman argues that penalties cannot be included because the Ninth Circuit held in Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1124 (9th Cir.2014) that "PAGA is not sufficiently similar to Rule 23 to establish the original jurisdiction of a federal court under CAFA.â See also id. at 1122 ("we conclude that PAGA actions are also not sufficiently similar to Rule 23 class actions to trigger CAFA jurisdictionâ). She asserts further that, even if it were, her "[Qail-ure to request class statusâ for the PAGA claim "is fatal to CAFA jurisdiction.â (Motion to Remand at 22-23 (citing Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1040 (9th Cir.2014)).) Newhall Memorial counters that Vasserman "misreadfs] her own complaint.â It argues that she has pled the PAGA claim as a class claim because she asserts that âPlaintiff, and all hourly employees of Defendant, are 'aggrieved employeesâ as defined by Labor Code § 2699, in that they are all current and former employees of Defendant, and one or more of the alleged violations was committed against them.' " (MTR Opp. at 22 (citing Complaint, ¶ 7).)
Since the Ninth Circuitâs decision in Bau-mann, no court has directly addressed whether PAGA penalties can be included in the amount in controversy when defendant seeks to remove a class action complaint that pleads a PAGA claim. Courts that have considered removals under CAFA, however, have implicitly addressed the question and reached conflicting conclusions. Compare Hughes v. McDonaldâs Corp., No. C 14-17001 PJH, 2014 WL 3797488, *8-9 (N.D.Cal. July 31, 2014) (remanding action to state court after concluding that the amount in controversy, including damages on class claims for violations of the California Labor Code and PAGA penalties, did not exceed $5,000,000); Ford v. CEC Entertainment, Inc., No. CV 1401420 RS, 2014 WL 3377990, *6 (N.D.Cal. July 10, 2014) (concluding that CAFAâs amount in controversy requirement was satisfied after including PAGA penalties in the calculation of total class damages) with Sanchez v. Capital Contractors, Inc., No. C 14-2622 MMC, 2014 WL 4773961, *1-3 (N.D.Cal. Sept. 22, 2014) (discharging an order to show cause why a case should not be remanded for lack of subject matter jurisdiction under CAFA because defendantâs initial calculation of the amount in controversy was based on PAGA penalties, and finding that the amount in controversy, not including PAGA penalties, exceeded $5,000,000). The court need not reach the issue, because it concludes that the assumption underlying Newhall Memorial's calculation of PAGA penalties, i.e., that there was a 100 percent violation rate with respect to each of Vassermanâs Labor Code claims, is speculative and unsupported.
. See Urbino v. Orkin Services, 882 F.Supp.2d 1152 (C.D.Cal.2011) ("This Court agrees with the Thomas court and finds that the amount in controversy in a PAGA claim is predicated on the total amount of civil penalties sought by the aggrieved employeesâ); Thomas v. Aetna Health of California, Inc., No. 1:10-cv-01906-AWI-SKO, 2011 WL 2173715, *19 (E.D.Cal. June 2, 2011) (â[T]he amount at stake in a PAGA claim is predicated on the total amount of the penalties that can be sought by the aggrieved employees as the proxy of the LWDAâ); Schiller v. Davidâs Bridal, Inc., No. 1:10-cv-00616 AWI SKO, 2010 WL 2793650, *8 (E.D.Cal. July 14, 2010) ("holding that a plaintiff seeking PAGA penalties places 100% of the penalty amount in controversyâ).
. Motion to Remand at 21-24 (citing Marshall v. G2 Secure Staff, LLC, No. 2:14-CV-04322-ODW (MANx), 2014 WL 3506608, *3 (C.D.Cal. July 14, 2014)).
. Id.
. Id. at 21.
. Puleo Opp. Decl., ¶¶ 4-7. Vasserman objects to Newhall Memorialâs evidence of the number of putative class members, arguing that her class definition is limited to current and former Newhall Memorial hourly, nonexempt employees who are residents of California. (See Objections at 2-6.) As the court has noted, however, this assertion is contradicted by the clear class definitions alleged in the complaint. Consequently, the court concludes that Newhall Memorial has proffered credible evidence concerning the number of putative class members.
.MTR Opp. at 20.
. See generally Puleo Opp. Decl.
. If all putative class members were working full-time, Newhall Memorial's estimate of total hours worked in excess of eight per day during each pay period would likely have been higher than it is.
. Puleo Opp. Deck, Exh. B at 19 (âFull-time: Nurses regularly scheduled for at least 72 hours within each two-week pay period. Provided that any Nurse who, prior to January 1, 2006, was working at least 64 hours each two week pay period and was regularly scheduled for non-12 hour shifts shall continue to be considered full-time as long as they continue to be scheduled in the same mannerâ); id. at 19-20 ("Part-time: Non-fulltime Nurses regularly scheduled at least 48 hours each two week pay period. Provided that any Nurse who, prior to January 1, 2003, was regularly scheduled between 16 and 47 hours each two-week pay period shall continue to be considered part-time as long as they continue to be regularly scheduled to work under 48 hours each two-week pay periodâ).
. Id., Exh. B at 28 ("Each Nurse shall be assigned to the 8 & 40 Overtime Plan, or the 0 & 40 Overtime Plan, or the 12 & 36 Overtime Plan. The Hospital, in so assigning one of the plans to any Nurse, shall first consult with that Nurse regarding the preference of that Nurse. (The Hospital, however, as a management right, pursuant to the Management Rights provisions of this Agreement, shall not be controlled by such preference, and the Hospital, following any such assignment, may thereafter change that assignment)â).
. Complaint, ¶ 18.
. MTR Opp. at 21.
. Id. (citing Complaint, ¶ 72.)
.Id., ¶ 60.
. Complaint, ¶ 66.
. Vasserman contends that the âhome state controversyâ exception to CAFA applies and that the action should remanded to Los Ange-les Superior Court on that basis. (Motion to Remand at 24-25.) Newhall Memorial counters that Vasserman has not adduced sufficient evidence to invoke the home state controversy exception. (MTR Opp. at 23-25.) Although the court need not reach the question, it does so nonetheless.
The home state controversy exception applies if the party seeking remand establishes that (i) two-thirds or more of all class members are citizens of California; and (ii) the "primary defendantsâ are citizens of California. See 28 U.S.C. § 1332(d)(4)(B). As the party seeking remand, Vasserman bears the burden of establishing that the home state controversy exception applies. See Coleman v. Estes Exp. Lines, Inc., 631 F.3d 1010, 1013 (9th Cir.2011) ("A plaintiff whose putative class action has been removed can obtain a remand to state court under any .of three exceptions to the district court's subject matter jurisdiction under CAFA.... A plaintiff seeking remand has the burden of showing that the [ ] exception appliesâ (citations omitted)); Serrano, 478 F.3d at 1019 (âDefendant-Appellants 180 Connect, Inc., Ironwood Communications, Inc., and Mountain Center, Inc. ('the Employersâ) appeal from the district court's order remanding a putative class action lawsuit to California state court under CAFA's âhome-state controversy' exception to federal jurisdiction. The district court held that the Employers, the parties seeking removal, bear the burden to establish the exception. We disagree. The structure of the statute and the long-standing rule of proof of exceptions to removal dictate that the party seeking remand bears the burden of proof as to any exception under CAFA. Consequently, we reverse, thus joining our sister circuits that have considered the issue. See Hart v. FedEx Ground Package System, Inc., 457 F.3d 675 (7th Cir.2006); Frazier v. Pioneer Americas LLC, 455 F.3d 542 (5th Cir.2006); Evans v. Walter Indus., Inc., 449 F.3d 1159 (11th Cir.2006)â).
It is undisputed that Newhall Memorial, the only named defendant, is the âprimary defendantâ and that is a citizen only of California. The parties disagree, however, as to whether Vasserman has adequately shown that "two-third or more of the members of all proposed plaintiff classes in aggregateâ are California citizens. Newhall Memorial asserts Vasserman has âprovided no evidence at all on [the] issue.â (MTR Opp. at 23.) Specifically, it argues that she has âfailed to show where any putative class members currently reside,â and "has provided no evidence at all regarding any putative class members' intention to continue to reside indefinitely in a particular state.â (Id. at 23-24.)
Vasserman counters that she need not adduce evidence concerning the citizenship of the putative class members because "[a]n inference [arises] that [defendantâs non-exempt employees who worked in Valencia, California, and are [the] subject of this class action are citizens of California.â (Motion to Remand at 24-25.) Vasserman relies on Mondragon v. Capital One Auto Finance, 736 F.3d 880, 881-82 (9th Cir.2013), where the Ninth Circuit stated that "[a] pure inference regarding the citizenship of prospective class members may be sufficient if the class is defined as limited to citizens of the state in question.â (Id.) While Mondragon permits drawing an inference of citizenship if a class is limited to citizens of a particular state, there is no basis for such an inference in this case. As the court has noted, Vasserman does not define her classes by reference to the citizenship of putative class members; rather, she defines the classes, without limitation, as comprised of all "hourly, non-exempt employees who worked for [defendantâ during the relevant limitations period. (See Complaint, ¶ 18.) When the class is not limited to citizens of a particular state, a plaintiff seeking remand must affirmatively demonstrate the citizenship of the putative class members; inferring