The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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12 ANGEL ROJO, an Individual, on No. 2:20-CV-01526-WBS-DB
behalf of himself, all others
13 similarly situated, and on
behalf of the general public as
14 Private Attorneys General MEMORANDUM AND ORDER RE:
DEFENDANT ROOFLINE INC.’S
15 MOTION TO DISMISS PLAINTIFF’S
Plaintiff, TENTH CAUSE OF ACTION, OR IN
16 THE ALTERNATIVE TO STAY
v.
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ROOFLINE, INC., a Texas
18 Corporation, A TEXAS
CORPORATION, ROOFLINE SUPPLY &
19 DELIVERY, a California
Corporation, and DOES 1 through
20 250,
21 Defendants.
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24 Plaintiff Angel Rojo (“plaintiff” or “Rojo”) brought
25 this action against Defendants Roofline Inc., Roofline Supply &
26 Deliver, and Does 1 through 250, (“defendants” or “Roofline”)
27 seeking damages related to Fair Employment and Housing Act
28 (“FEHA”) retaliation, disability discrimination, failure to
1 accommodate, wrongful termination, and violations of wage and
2 hour laws.
3 Plaintiff’s Tenth Cause of Action is a representative
4 claim on behalf of himself and other aggrieved employees to
5 recover civil penalties under the California Private Attorneys’
6 General Act (“PAGA”) based on the alleged denial of meal and rest
7 breaks. (See generally Compl.) (Docket No. 1, Ex. A.) In the
8 motion presently before the court, defendants seek to dismiss or
9 in the alternative to stay that cause of action. (“Mot. to
10 Dismiss”) (Docket No. 4.)
11 I. Motion to Dismiss under Rule 12(b)(6)
12 PAGA “authorizes an employee to bring an action for
13 civil penalties on behalf of the state against [their] employer
14 for Labor Code violations committed against the employee and
15 fellow employees, with most of the proceeds of that litigation
16 going towards the state.” Sakkab v. Luxottica Retail N. Am.,
17 Inc., 804 F.3d 425, 429 (9th Cir. 2015). The employees bringing
18 the action do so as agents or proxies of the state’s labor law
19 enforcement agencies. See id. at 435. “The civil penalties
20 recovered on behalf of the state under the PAGA are distinct from
21 the statutory damages to which employees may be entitled in their
22 individual capacities.” Iskanian v. CLS Transportation Los
23 Angeles, LLC, 59 Cal. 4th 348, 381 (2014).
24 Federal Rule 12(b)(6) allows a defendant to assert a
25 defense by motion for “failure to state a claim upon which relief
26 can be granted.” Fed. R. Civ. P. 12(b)(6). The inquiry before
27 the court is whether, accepting the allegations in the complaint
28 as true and drawing all reasonable inferences in the plaintiff’s
1 favor, the plaintiff has stated a claim to relief that is
2 plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678
3 (2009). “The plausibility standard is not akin to a ‘probability
4 requirement,’ but it asks for more than a sheer possibility that
5 a defendant has acted unlawfully.” Id. at 678. “Threadbare
6 recitals of the elements of a cause of action, supported by mere
7 conclusory statements, do not suffice.” Id.
8 Defendants contend that plaintiff is barred from
9 pursuing his PAGA cause of action because a substantially similar
10 suit pursuing the same PAGA claims on behalf of the same group of
11 employees is pending in state court. See Sifuentes v. Roofline,
12 Inc., Case No. 34-2019-00269947-CU-OE-GDS (Sacramento Sup. Ct.,
13 filed Nov. 27, 2019) (“Sifuentes action”).1 The plain language
14 of California Labor Code § 2699(h) bars an employee from bringing
15 a PAGA action when the LWDA has cited an employer or pursued
16 action against them. See Tan v. Grubhub, Inc., 171 F. Supp. 3d
17 998, 1012 (N.D. Cal. 2017). However, the statute is silent with
18 respect to whether an employee may bring a PAGA action when
19 another private plaintiff has already sued the employer in a
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1 Defendants request that the court take judicial notice
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of three documents. (See generally RJN.) These documents are:
22 (a) a true and correct copy of the First Amended Complaint in
Sifuentes v. Roofline, Inc., Case No. 34-2019-00269947-CU-OE-GDS
23 (Sacramento Sup. Ct., filed Nov. 27, 2019; First Am. Compl. filed
July 8, 2020), (b) the November 27, 2019 Notice under Cal. Lab.
24 Code § 2699.3 filed by Sifuentes with the California Department
of Industrial Relations and (c) a copy of the May 8, 2020
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stipulation and the Sacramento Superior Court’s June 22, 2020
order permitting Sifuentes to file a First Amended Complaint.
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Plaintiff has not objected. Accordingly, the court grants the
27 defendants’ request for judicial notice of documents from the
Sifuentes proceedings in state court and from the LWDA.
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1 representative capacity. See id.
2 Defendants have not cited a single case that bars
3 successive suits by different employees. Defendants principally
4 rely on dicta in Stafford v. Dollar Tree Stores, Inc., No. 13-cv-
5 1187 KJM CKD, 2014 WL 6633396, at *3 (E.D. Cal. Nov. 21, 2014)
6 and Brown v. Ralph’s Grocery Co., 197 Cal. App. 4th 489, 501 (2nd
7 Dist. 2012). These cases note that California Labor Code §
8 2699(h) prohibits an action by an aggrieved employee when the
9 agency or any of its divisions or employees are directly pursuing
10 enforcement against the employer on the same facts and theories
11 under the same section(s) of the Labor Code. See Cal. Lab. Code
12 § 2699(h). But, as the Tan court observed, the issue at bar here
13 was not raised in these cases nor do they explain why the section
14 “should be read to include deferring a suit by private plaintiffs
15 when the statutory language makes no such provision.” Tan, 171
16 F. Supp. 3d at 1012.
17 Here, the LWDA has not appeared in either case, nor
18 does it appear to have independently pursued an action against
19 Roofline based on the same facts and theories at issue. A
20 different analysis would be required if a judgment had been made
21 in the Sifuentes action, as it could be argued that such a
22 judgment would be binding on government agencies and any
23 aggrieved employee not a party to the proceeding. However, the
24 mere pendency of the Sifuentes action does not bar plaintiff’s
25 PAGA cause of action. Accordingly, the court will deny the
26 motion to dismiss.
27 II. Stay of PAGA Cause of Action
28 Defendants additionally contend that the court should
1 dismiss or stay plaintiff’s tenth cause of action under PAGA
2 pursuant to the abstention doctrine set forth in Colorado River
3 Water Conservation District v. United States, 424 U.S. 800
4 (1976), due to the greater progress of Sifuentes’ state-court
5 action.2 (See Mot. to Dismiss at 6–9.) Because the court will
6 stay plaintiff’s tenth cause of action pursuant to its inherent
7 authority to control the disposition of the cases on its docket,
8 the court need not delve into the parties’ arguments under the
9 Colorado River doctrine.
10 The power to stay proceedings “is incidental to the
11 power inherent in every court to control the disposition of the
12 cases on its docket with economy of time and effort for itself,
13 for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S.
14 248, 254 (1936). District courts ordinarily have authority to
15 issue stays where such a stay would be a proper exercise of
16 discretion. See Rhines v. Weber, 544 U.S. 269, 276 (2005).
17 Consideration of such a stay calls for “the exercise of judgment
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2 Defendants argue that “[i]t is well accepted that a
19 party may move under Federal Rule of Civil Procedure 12(b)(1) to
dismiss or stay an action pursuant to the Colorado River
20 doctrine.” (Mot. to Dismiss at 3.) The cases that defendants
cite for this proposition do not support this point. See, e.g.
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Fireman’s Fund Ins. Co. v. Quackenbush, 87 F.3d 290, 298 (9th
22 Cir. 1996); Am. Int’l Underwriters (Philippines), Inc. v.
Continental Ins. Co., 84 F.2d 1253, 1261 (9th Cir. 1988);
23 Robinson v. Nestle Waters N. Am., Inc., Case No. CIV-S-11-856-
LKK/KJN, 2011 WL 2174375 (E.D. Cal. June 1, 2011). Those cases
24 discuss dismissal under Colorado River, but do not hold that
moving to dismiss under Colorado River constitutes a 12(b)(1)
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motion. A motion to dismiss under Rule 12(b)(1) seeks dismissal
of an action over which a court lacks subject matter
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jurisdiction. See Fed. R. Civ. P. 12(b)(1). In contrast, the
27 Colorado River doctrine applies where the court has jurisdiction
over the matter but is declining or postponing the exercise of
28 this jurisdiction. See Colorado River, 424 U.S. at 817.
1 which must weigh competing interests and maintain an even
2 balance.” See Landis, 299 U.S. at 254–55. Here, plaintiff’s
3 case was only filed in this court very recently, in late July of
4 2020. ((See generally Compl.) From the limited information that
5 the court has received from defendants in their motion and at
6 oral argument, the Sifuentes action appears to be proceeding
7 regularly in state court. Plaintiff’s counsel has provided no
8 persuasive reason why the PAGA claim in this case should go
9 forward before completion of the Sifuentes action. Due to the
10 progress of the Sifuentes action in state court, this court
11 concludes it is in the best interest of judicial economy to stay
12 plaintiff’s tenth cause of action in this action pending a
13 determination of the PAGA claims in the Sifuentes action.
14 IT IS THEREFORE ORDERED that defendants’ motion to
15 dismiss pursuant to 12(b)(6) (Docket No. 4) be, and the same
16 hereby is, DENIED.
17 IT IS FURTHER ORDERED THAT the Tenth Cause of Action of
18 the Complaint is hereby STAYED pending the resolution of
19 Sifuentes v. Roofline, Inc., Case No. 34-2019-00269947-CU-OE-GDS,
20 in the Superior Court of the State of California, in and for the
21 County of Sacramento. This Order does not affect the remaining
22 causes of action of the Complaint.
23 The parties shall file a joint status report within 14
24 days after the resolution of Sifuentes v. Roofline, Inc. Should
25 the resolution of the Sifuentes case not dispose of plaintiff’s
26 tenth cause of action, the parties’ joint status report shall set
27 forth an agreed proposed date for a status conference and agreed
28 proposed deadlines, including for any motion to dismiss by
wOAOe 2 OU UV VE VOU YY RYDER MVOC OPIN ee YN
1 defendants.
2 IT IS SO ORDERED.
3 | Dated: September 23, 2020 □□ tteom. Ad. bt—~
4 WILLIAMB.SHUBB ©. |
UNITED STATES DISTRICT JUDGE
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