Rubio v. HP Hood, LLC

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BENJAMIN RUBIO,
Plaintiff,
v.
HP HOOD, LLC,
Defendant.
No. 2:24-cv-3621 AC
ORDER
This case is before the undersigned for all purposes pursuant to the parties’ consent. ECF
No. 8. Before the court is defendant’s motion to dismiss plaintiff’s Second Amended Complaint.
ECF No. 37. Plaintiff opposes the motion. ECF No. 39. Defendant replied. ECF No. 40.
Defendant submitted a request for judicial notice. ECF No. 38. This matter was before the court
for oral argument on September 9, 2026. The parties were permitted to file supplemental
briefing, which has been considered. ECF Nos. 43, 44. For the reasons set forth below, the
motion to dismiss is GRANTED in part and DENIED in part.
I. 	BACKGROUND
This wage-and-hour action, brought partly pursuant to California’s Private Attorney
General’s Act (“PAGA”), was removed from state court on December 19, 2024. ECF No. 1. The
parties stipulated on February 7, 2025, to allow plaintiff to file an amended complaint (ECF No.
10), and the First Amended Complaint was filed on February 18, 2025. ECF No. 13. The court
set an initial deadline of January 22, 2026, for plaintiff’s motion for class certification. ECF No.
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18. The parties stipulated to continue that deadline to May 22, 2026, with responsive briefing due
July 23, 2026, and a hearing to be held on October 14, 2026. ECF Nos. 19, 20. On May 20,
2026, two days before the class certification motion was due, plaintiff filed the motion to amend
the complaint. ECF No. 24. Plaintiff then filed a motion for class certification based on the
proposed Second Amended Complaint. ECF No. 26.
In the First Amended Complaint, plaintiff alleged he worked for defendant as an
hourly, non-exempt warehouse clerk. ECF No. 13 at 3. On or about January 13, 2024, plaintiff’s
employment ended. Id. Plaintiff alleged that during his employment he was subjected to
defendant’s “failure to provide accurate, itemized wage statements, penalties and/or damages for
failure to pay all minimum wages for hours worked, penalties and/or damages for failure to
provide off duty meal and rest periods, failure to reimburse business expenses, penalties under
California Labor Code statutes, and restitution for unfair business practices in violation of
Business and Professions Code § 17200, et seq.” ECF No. 13 at 2. Plaintiff brought eight causes
of action under the Labor Code and the Business and Professions Code. In the First Amended
Complaint plaintiff sought to “certify a class of all current and former non-exempt employees
who worked for defendants at any time from August 30, 2022, to the filing of this complaint” also
consisting of “the following additional class and subclasses: A. All current and former non-
exempt employees who were paid ‘Nite Dif SM’ and ‘Nite Dif SM’ wages or were subjects to
Defendants policies by Defendants at any time from four years prior to the filing of this
complaint, through the present (the “Shift Differential Class”).” ECF No. 13 at 5.
The undersigned granted plaintiff permission to file a Second Amended Complaint
(“SAC”) and vacated the class certification schedule. ECF No. 34. The operative SAC is located
at ECF No. 36. The motion to certify class remains pending. The SAC changed the class
definition to include “a. All non-exempt employees California employees who were provided
wage statements that did not identify the rate of pay and corresponding hours worked for certain
hourly wages, including, but not limited to ‘Premium OT and Additional Pay’, at any time from
November 12, 2023, through the present (‘Wage Statement Class’); and b. All non-exempt
California employees who were paid non-discretionary remuneration including, but not limited to,
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shift differential wages covering any period in which sick pay or PTO wages were paid to the
employee by Defendant and whose employment ended, either voluntarily or involuntarily, at any
time during the period of time from August 30, 2022, through the present (‘Sick Pay Class’).”
ECF No. 35 at 5. The Second Amended Complaint brings three, rather than eight, causes of
action: (1) “violation of Labor Code § 226 by failing to provide accurate payroll records for
Plaintiff and the Class,” (2) “violation of Labor Code §246 by failing to pay sick pay at the
regular rate of pay,” and (3) “violations of Labor Code §§ 201-204, 226, 226.7, 512, 558, 1174,
1194, 1197, 1197.1, 1198, from November 12, 2023, through the present, for (a) failing to
provide accurate wage statements; (b) failing to pay proper business reimbursement including the
use of employees’ personal vehicles and cell phones; (c) failing to provide proper meal and rest
breaks; (d) failing to pay meal and rest break premium wages at the regular rate of pay; and (e)
failing to pay waiting time penalties.” Id. at 7-11. Plaintiff’s SAC asserts that he sent written
notice to the Labor Workforce Development Agency (LWDA) and Defendant on April 30, 2024,
detailing the alleged Labor Code violations for which he seeks civil penalties under PAGA
(“PAGA Notice”). ECF No. 36 at ¶¶ 68-70.
Defendant now moves to dismiss the Second Amended Complaint. ECF No. 37.
Defendant seeks (1) dismissal of the first cause of action as time barred, (2) dismissal of the
second cause of action as completely preempted by the LMRA and for failure to timely exhaust
the grievance procedure, and (3) dismissal of the third cause of action for failure to state facts and
failure to timely exhaust PAGA notice requirements. ECF No. 37 at 2. Alternatively, as to the
third cause of action, defendant moves under FRCP 12(f) to strike the following portions of the
Second Amended Complaint: “(a) failing to provide accurate wage statements” (SAC ¶ 67 line
23); “(d) failing to pay meal and rest break premium wages at the regular rate of pay” (SAC ¶ 67
line 25-26); “(e) failing to pay waiting time penalties” (SAC ¶ 67 line 26); and Reference to the
following Labor Code sections: “201-204, 226, 226.7, 1174, 1197, 1197.1, 1198” (SAC ¶ 67 line
22 and ¶ 70 line 9-10). Id.
Defendant submitted a request for judicial notice. ECF No. 38. The request asks the court
to take notice of (1) the fact that the California minimum wage in effect for 2026 is $16.90 per
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hour, as published by the California Department of Industrial Relations (See Cal. Dep’t of Indus.
Relations, Minimum Wage Order NW-2026; see also Cal. Lab. Code § 1182.12(c)); (2) the
Teamsters Local 150 Collective Bargaining Agreement (effective September 1, 2019, through
August 31, 2024); and (3) plaintiff’s PAGA notice, referenced in the Second Amended
Complaint. ECF No. 38 at 3-4. District courts within the Ninth Circuit routinely take judicial
notice of collective bargaining agreements on a motion to dismiss, particularly where the
agreement is central to the issue of preemption. See Hall v. Live Nation Worldwide, Inc., 146 F.
Supp. 3d 1187, 1192-93 (C.D. Cal. 2015) (taking judicial notice of a CBA and dismissing on
LMRA preemption grounds). Courts routinely take judicial notice of PAGA notice letters that are
referenced in the complaint and whose authenticity no party disputes. See, e.g., Crosby v. Wells
Fargo Bank, N.A., 42 F. Supp. 3d 1343, 1345 (C.D. Cal. 2014). Further, a court may take judicial
notice of information “made publicly available by government entities” where neither party
disputes its authenticity or accuracy. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99
(9th Cir. 2010). The court accordingly granted the request for judicial notice at the motion
hearing. ECF No. 42.
At oral argument, the undersigned raised the possibility of partially converting the motion
from a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) to a motion for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c), as to the second cause of action only, in order to
consider the affirmative defense of preemption. The parties were given an opportunity to brief
the issue. ECF No. 42. Both parties filed briefing. ECF Nos. 43, 44. As explained below,
having considered all of the arguments, the court concludes that partial conversion is the proper
course of action.
II. 	ANALYSIS: MOTION TO DISMISS
“The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal
sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.
1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t., 901
F.2d 696, 699 (9th Cir. 1990).
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In order to survive dismissal for failure to state a claim, a complaint must contain more
than a “formulaic recitation of the elements of a cause of action;” it must contain factual
allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). It is insufficient for the pleading to contain a statement of
facts that “merely creates a suspicion” that the pleader might have a legally cognizable right of
action. Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-35
(3d ed. 2004)). Rather, the complaint “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
In reviewing a complaint under this standard, the court “must accept as true all of the
factual allegations contained in the complaint,” construe those allegations in the light most
favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. See Erickson v. Pardus,
551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954,
960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler, 627 F.3d 338, 340 (9th
Cir. 2010). However, the court need not accept as true legal conclusions cast in the form of
factual allegations, or allegations that contradict matters properly subject to judicial notice. See
Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001).
A. First Cause of Action: Wage Statement Class
Defendant contends that plaintiff’s Labor Code § 226 wage statement claim is time-
barred because it is based on a “non-derivative” theory of liability that does not relate back to the
§ 226 derivative claim in the prior pleadings. Section 226 of the Labor Code requires employers
to keep accurate itemized pay statements setting forth gross wages, the actual number of hours
and minutes worked, and all applicable hourly rates of pay. Cal. Lab. Code § 226(a). Defendant
helpfully and concisely explains that “the fact that both types of section 226 claims may refer to
the same document—the wage statement—does not mean they arise from the same operative
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facts or depend on the same evidence. A derivative wage statement claim requires proof that the
employer failed to pay underlying wages and therefore necessitates an inquiry into whether those
wages were owed in the first instance. By contrast, a non-derivative wage statement claim turns
solely on whether the wage statement itself contains the information required by section 226 and
whether that information is accurate. These are fundamentally different factual inquiries
supported by entirely different evidence.” ECF No. 37-1 at 19.
In reviewing plaintiff’s motion to amend, the undersigned previously found that the non-
derivative § 226 claim relates back to the original complaint, and having fully reviewed the issue
finds no reason to change course. Relation back is governed by Rule 15(c)(1), which directs the
courts to apply “whichever affords the more permissive relation back standard” as between
federal law and the law that supplies the limitations period. Butler v. Nat’l Cmty. Renaissance of
Cal., 766 F.3d 1191, 1200-01 (9th Cir. 2014); Fed. R. Civ. P. 15(c)(1). Under both federal and
California law, an amended claim relates back when it arises out of the same conduct, transaction,
or occurrence, or the same general set of facts, as the original pleading. “The relation back
doctrine of Rule 15(c) is liberally applied.” ASARCO, LLC v. Union Pac. R.R., 765 F.3d 999,
1004 (9th Cir. 2014). Claims relate back where “the original and amended pleadings share a
common core of operative facts so that the adverse party has fair notice.” Id. at
1005; see also Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008) (claims relate back
where they “share a common core of operative facts such that the plaintiff will rely on the same
evidence to prove each claim”).
Under California’s more liberal doctrine, “[a]n amended complaint relates back to
an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a
different legal theory or new cause of action,” and “the critical inquiry is whether the defendant
had adequate notice of the claim based on the original pleading.” Pointe San Diego Residential
Cmty., L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP, 195 Cal. App. 4th 265, 277 (2011).
In fact, “it is the sameness of the facts rather than the rights or obligations arising from those facts
that is determinative.”” Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1200 (2008).
Plaintiff refers the court to Stoddart v. Express Servs., 2016 U.S. Dist. LEXIS 80737
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(E.D. Cal. June 21, 2016), as persuasive authority. ECF No. 39 at 12. In Stoddart, the plaintiff
originally alleged a § 226 wage statement claim premised on defendants’ failure to include meal
period violations on the wage statements — a derivative theory. Id. at *3-4. The plaintiff later
amended to add an “inclusive Dates” wage statement theory — a distinct, non-derivative, stand-
alone claim. Id. The defendant argued, exactly as HP Hood argues here, that the new non-
derivative claim rested on different facts and could not relate back to the original derivative claim
and that the statute of limitations precludes the amendment. The Stoddart court rejected that
argument in full and found the claim related back. Id. Defendant argues that this case is not
persuasive because it is unpublished, because the relation-back analysis is only high-level, and
because in Stoddart the non-derivative §226 claim was added to the original claim, where here,
the original claim has been dismissed. The court is unpersuaded by any of these arguments.
While Stoddart is not controlling authority, the undesigned is persuaded by its reasoning, which is
supported by the legal standard and logical underpinnings of Rule 15(c)(1). Again, the court
finds that the non-derivative § 226 claim is not time barred because it relates back to the original
complaint. The motion is denied on this point.
B. Third Cause of Action: PAGA Claim
The SAC asserts a PAGA claim based on: “(a) failing to provide accurate wage
statements; (b) failing to pay proper business reimbursement including the use of employees’
personal vehicles and cell phones; (c) failing to provide proper meal and rest breaks; (d) failing to
pay meal and rest break premium wages at the regular rate of pay; and (e) failing to pay waiting
time penalties.” ECF No. 35 at 9-10.
1. 	Failure to State a Claim
Defendant argues that the SAC pleads no facts supporting plaintiff’s PAGA claims for (i)
expense-reimbursement, (ii) meal-and-rest-break theories, and (iii) waiting-time theories, and
accordingly, the claims fail under Federal Rule of Civil Procedure 8(a)(2). ECF No. 37-1 at 20-
21. Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff argues the SAC is
sufficient. For example, the SAC alleges the specific expenses at issue for the reimbursement
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claim: “the use of employees’ personal vehicles and cell phones.” ECF No. 35 at ¶ 67. Further,
the SAC alleges that these violations flowed from defendant’s “system of willful violations of the
California Labor Code” implemented through uniform “policies, practices and customs.” Id. at ¶¶
3, 19. Plaintiff asserts that the allegations of a uniform corporate policy, taken as true
and construed in plaintiff’s favor, are sufficient to place the defendant on notice of the claims and
their grounds. ECF No. 39 at 9-10.
The undersigned agrees with defendant that, as drafted, the PAGA claims are
insufficiently alleged. The SAC simply does not plead any concrete facts supporting the
reimbursement, meal-and-rest-break, or waiting-time theories that the PAGA cause of action
purports to incorporate. Specifically, the expense-reimbursement theory appears only twice in the
SAC, and each time only as a legal conclusion. ECF No. 35 at ¶ 3 (“fail[ed] to reimburse
business expenses as to Plaintiff” and ¶ 67 “failing to pay proper business reimbursement
including the use of employees’ personal vehicles and cell phones.”). No other fact is alleged
elsewhere in the SAC. The meal and rest break theories likewise appear only twice, and again
only as legal conclusions. ECF No. 36 at ¶ 3 (“failing to provide compliant meal and rest
breaks”) and ¶ 67 (“failing to provide proper meal and rest breaks” and “failing to pay meal and
rest break premium wages at the regular rate of pay”). Finally, the waiting-time theory is
referenced only twice, and each reference is a bare legal conclusion. ECF No. 35 at ¶ 38
(“Defendant[] … owe[s] waiting time penalties pursuant to Labor Code § 203” and “Plaintiff[]
and Class Members whose employment has separated are entitled to waiting time penalties
pursuant to Labor Code §§ 201-203”) and ¶ 67 (“failing to pay waiting time penalties.”)).
While plaintiff is correct that detailed allegations are not required, he must do more than
recite statutory language. Simply alleging that a uniform practice exists is not enough.
Accordingly, the undersigned finds these PAGA claims must be dismissed, but that plaintiff
should be given an opportunity to amend to include necessary factual allegations.
2. 	Failure To Exhaust PAGA’s Pre-Filing Notice Requirements
Plaintiff concedes that his new theories for unpaid sick pay at the regular rate of pay and
stand-alone violation of Labor Code §226 are not subject to PAGA penalties being imposed
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because he did not exhaust those theories within the one-year statute of limitations. ECF No. 39
at 10-11. Accordingly, the motion is granted on this point.
III. 	ANALYSIS: MOTION FOR JUDGMENT ON THE PLEADINGS
A. Standards
A Rule 12(c) motion challenges the legal sufficiency of the opposing party’s pleadings
and operates similarly to a motion to dismiss under Rule 12(b)(6). Judgment on the pleadings is
appropriate if, assuming the truth of all materials facts pled in the complaint, the moving party is
nonetheless entitled to judgment as a matter of law. Hal Roach Studios, Inc. v. Richard Feiner &
Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989). In addition to considering the allegations of the
complaint, like a motion under Rule 12(b)(6) the court may also take into account materials to
which it can take judicial notice. Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 (9th
Cir. 1999). 	“When the complaint itself contains everything needed to show that the defendant
must prevail on an affirmative defense, then the court can resolve the suit on the pleadings under
Rule 12(c).” Edgenet, Inc. v. Home Depot U.S.A., Inc., 658 F.3d 662, 665 (7th Cir. 2011).
B. Second Cause of Action: Sick Pay Class Preemption by LMRA
Defendant asserts that plaintiff’s Sick Pay class claims for violation of the California
Labor Code are completely preempted by § 301 of the Labor Management Relations Act
(“LMRA”). Under § 301, “[s]uits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce as defined in this chapter,
or between any such labor organizations, may be brought in any district court of the United States
having jurisdiction of the parties, without respect to the amount in controversy or without regard
to the citizenship of the parties.” 29 U.S.C. § 185(a). The Supreme Court has explained that this
section constitutes a broad federal mandate, and that the “preemptive force of section 301 is so
powerful as to displace entirely any state cause of action for violation of contracts between an
employer and a labor organization.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1, 23 (1983).
The Ninth Circuit applies the two-step “Burnside test” to determine whether § 301 of the
LMRA preempts a particular state-law claim. Burnside v. Kiewit Pacific Corp., 491 F.3d 1053,
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1059-60 (9th Cir. 2007). First, the court asks whether the claimed right exists independently
under state law or arises solely from a collective bargaining agreement (“CBA”). Id. at 1060. If
the right arises solely from the CBA, the claim is preempted. Id. If the right exists
independently, the court asks whether resolving the claim requires interpreting the CBA rather
than merely referencing it. Id. A claim requiring interpretation is preempted; a claim requiring
only reference to the CBA is not. Id.
Defendant asserts that plaintiff’s right to paid sick leave arises from the Teamsters Local
150 CBA, not from California Labor Code section 246, and accordingly his paid sick leave claim
is completely preempted. ECF No. 37-1 at 10. California’s Paid Sick Leave law does not apply
to employees “covered by a valid collective bargaining agreement if the agreement expressly
provides for [1] the wages, hours of work, and working conditions of employees, and expressly
provides for [2] paid sick days or a paid leave or paid time off policy that permits the use of sick
days for those employees, [3] final and binding arbitration of disputes concerning the application
of its paid sick days provisions, [4] premium wage rates for all overtime hours worked, and [5]
regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.”
Labor Code 245.5(a)(1). When a CBA meets all five statutory criteria under § 245.5, the
employee’s sick leave right exists solely as a result of the CBA, satisfying step one of the
Burnside test and resulting in complete preemption. See Shanley v. Tracy Logistics LLC, 756
F.Supp.3d 820 (E.D. Cal. 2024) (denying motion to remand, holding that alleged paid sick leave
violations were based on CBA and subject to LMRA preemption.)
Plaintiff does not dispute that he is covered by the CBA which is subject to judicial notice
here. ECF No. 39 at 3. Instead, he argues that the recent Ninth Circuit case Renteria-Hinojosa v.
Sunsweet Growers, Inc., 150 F.4th 1076 (9th Cir. 2025), establishes that a claim under Labor
Code section 246 that the employer “failed to pay employees at the sick pay rate required by
California Labor Code § 246” is not preempted by the LMRA. Id. at 1090-91. Defendant
counters this, arguing that Renteria-Hinojosa was not decided under Labor Code § 245.5, and the
opinion does not mention § 245.5 anywhere, much less analyze, interpret, or decide whether
complete preemption applies under it. ECF No. 40 at 8. The undersigned agrees with defendant.
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While Renteria-Hinojosa is in many ways factually similar to the case at bar, that case did
not consider the primary question here: whether § 245.5 removes the application of California’s
Labor Code § 246 to those covered by the applicable CBA. Here, the only element of the
conjunctive test under § 245.5 that plaintiff disputes is whether the CBA provides for “final and
binding arbitration of disputes concerning the application of its paid sick days provisions.” ECF
No. 39 at 5. Plaintiff argues that under the Teamsters CBA’s grievance procedure, if a grievance
is not resolved at earlier steps it is submitted to an “Arbitration Board composed of two
representatives selected by the Employer and two representatives selected by the Union,” and “[a]
majority vote of the Arbitration Board shall dispose of the grievance and shall be final and
binding on the parties.” Request for Judicial Notice, Ex. 1 [Teamsters Local 150 CBA], Art. 38.
Only “[i]f the Arbitration Board is unable to issue a majority decision” and issues “a written
statement that it is deadlocked” may the grieving party then submit the matter to a neutral
arbitrator. Id. Plaintiff contends that a joint labor-management panel evenly divided between
employer and union representatives, whose majority decision resolves the grievance and
forecloses any neutral arbitrator, is not the “final and binding arbitration” that § 245.5
contemplates because the employer controls half of the votes and neutral arbitration is available
only upon a deadlock that may never occur. ECF No. 38 at 5-6; ECF No. 43.
The court agrees with defendant that plaintiff is attempting to re-write the statute, which
requires that arbitration be “final and binding” and contains no other specific requirements. In the
case of the CBA at issue, a final and binding decision in arbitration may be rendered either by a
panel or, if the panel deadlocks, a neutral arbitrator. If a deadlock does not occur and the matter
never reaches a single arbitrator, then the arbitration was successful at an earlier step. Whether
arbitration concludes at the panel stage or proceeds to a neutral arbitrator, the result is a final and
binding decision. Accordingly, the CBA at issue in this case meets all five criteria of § 245.5.
When a CBA comes within the scope of § 245.5, then § 246 does not apply and the
employee’s sick leave right exists solely as a result of the CBA. This results in complete
preemption at step one of the Burnside test. See Shanley v. Tracy Logistics LLC, 756 F.Supp.3d
820 (E.D. Cal. 2024) (denying motion to remand, holding that alleged paid sick leave violations
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were based on CBA and subject to LMRA preemption). Plaintiff’s claims related to Sick Pay are
accordingly preempted, and can only be asserted in the process established by the CBA.
C. Plaintiff Failed to Exhaust Administrative Remedies Under the CBA
Before an employee may sue to vindicate rights under a CBA, “members of a collective
bargaining unit must first exhaust contractual grievance procedures,” and “[f]ailure to utilize the
grievance procedures, or to invoke them in a timely manner, bars grievants from pursuing
remedies in court.” Carr v. Pac. Mar. Ass’n, 904 F.2d 1313, 1317 (9th Cir. 1990) (affirming
dismissal); see also Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 989 (9th Cir. 2007)
(granting summary judgement to defendant under section 301 for plaintiff’s failure to exhaust
exclusive contractual remedies under the CBA). District courts in this Circuit consistently apply
the rule at the pleading stage, dismissing claims where the plaintiff has not alleged exhaustion.
See e.g., Mellon v. Universal City Studios, LLC, 625 F. Supp. 3d 1007, 1017-18 (C.D. Cal. 2022)
(granting dismissal where employee “ha[d] not alleged that he exhausted his contractual
remedies”); Hall v. Live Nation Worldwide, Inc., 146 F. Supp. 3d 1187, 1206 (C.D. Cal. 2015)
(same); Billingsley v. MV Transportation, Inc., 242 F. Supp. 3d 1011, 1020-1021 (E.D. Cal.
2017) (motion to dismiss granted with leave to amend to plead grievance exhaustion to the extent
such facts exist).
Here, because the CBA establishes a mandatory grievance and arbitration procedure for
resolving “all disputes arising out of the interpretation and/or application of express terms” of the
CBAs (RJN Ex. 1 [2019-2024 Teamsters Local 150 CBA], Article 38, Section 2, p 29), plaintiff
was required to exhaust the grievance procedures before pursuing litigation. Plaintiff does not
dispute that he did not exhaust his grievance procedures; he asserts only that he was not required
to because his claim was not preempted. ECF No. 39 at 6. Having found that the claim is
preempted, this argument cannot succeed. Accordingly, the motion is granted as to the sick pay
class claims because they are preempted and because plaintiff did not exhaust his administrative
remedies.
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IV. 	CONCLUSION
For the reasons set forth above, defendant’s motion to dismiss (ECF No. 37) is
GRANTED IN PART AND DENIED IN PART as follows:
1. 	GRANTED as to plaintiff’s Second Cause of Action (Sick Pay Class) and Third
Cause of Action (PAGA Claims);
2. 	DENIED as to plaintiff’s First Cause of Action (Wage Statement Class);
3. 	Plaintiff may, at his discretion and within 30 days, file a Third Amended
Complaint, including only the Wage Statement Class claims and the PAGA claims for (i)
expense-reimbursement, (ii) meal-and-rest-break theories, and (iii) waiting-time;
4. 	Because the motion to dismiss is granted in part, plaintiff’s motion to certify class
(ECF No. 26) is DENIED as MOOT; and
5. 	The parties are ORDERED to meet and confer and, within 45 days of this order,
submit a joint proposed schedule for a class certification motion related to any Third Amended
Complaint or, if no Third Amended Complaint is filed, the Second Amended Complaint as
narrowed by this order (First Cause of Action only).
IT IS SO ORDERED.
DATED: October 13, 2026
Case 2:24-cv-03621-AC Document 45 Filed 10/14/26 Page 13 of 13