Jaime Camilo Camarena-Regalado v. Southern California Permanente Medical Group

CIVIL MINUTES – GENERAL

Case No. LA CV 2:22-06010 JAK (JPRx) Date S eptember 25, 2023

Jaime Camilo Camarena-Regalado v. Southern California Permanente Medical Group, et

Title

al.

Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

T. Jackson Not Reported

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFF’S MOTION TO REMAND (DKT.

10)

I. Introduction

Jaime Camilo Camarena-Regalado (“Plaintiff”) brought this action against Southern California

Permanente Medical Group (“SCPMG”), Kaiser Foundation Health Plan, Inc. (“Kaiser”) and Does 1–10

(collectively, “Defendants”) in the Los Angeles Superior Court. Dkt. 1, Ex A (the “Complaint”). The

Complaint advances seven causes of action: (1) violation of Cal. Lab. Code §§ 1102.5–1105; (2)

wrongful termination in violation of public policy; (3) retaliation in violation of Cal. Health & Safety Code

§ 1278.5; (4) California Family Rights Act (“CFRA”) interference in violation of Cal. Gov’t Code §

12945.2 and Cal. Code Regs. tit. 2, §§ 7297.4, 7297.9, 11091; (5) defamation; (6) failure to pay all

wages due upon termination in violation of Cal. Lab. Code §§ 200–202, et seq.; and (7) failure to pay

overtime compensation in violation of Cal. Lab. Code § 1194. On August 23, 2022, Defendants filed an

answer to the Complaint. Dkt. 1, Ex. D.

On August 24, 2022, Defendants removed this action, based on a claim of federal question jurisdiction

under 28 U.S.C. § 1331. Dkt. 1 (the “Notice of Removal”). On September 23, 2022, Plaintiff filed a

Motion to Remand. Dkt. 10 (the “Motion”). On October 7, 2022, Defendants filed an opposition to the

Motion (Dkt. 11, the “Opposition”), and a request for judicial notice in support of the Opposition. Dkt 12

(the “RJN”). On October 14, 2022, Plaintiff filed a reply in support of the Motion (Dkt. 13, the “Reply),

and objections to evidence submitted in support of the Opposition. Dkt. 13-2 (the “Evidentiary

Objections”). On October 28, 2022, Defendants filed “Objections and Request to Strike Plaintiff’s New

Arguments and Evidence on Remand Reply Brief, or in the Alternative, Requesting the Court Accept

Defendant’s Response as a Sur-Reply.” Dkt. 15 (the “Sur-Reply”). On October 31, 2022, Plaintiff filed

an objection to the Sur-Reply. Dkt. 16 (the “Objection to Sur-Reply”).

A hearing on the Motion was held on November 15, 2022, and the matter was taken under submission.

For the reasons stated in this Order, the Motion is GRANTED-IN-PART AND DENIED-IN-PART. The

Motion is DENIED as to Plaintiff’s request that this entire action be remanded to the Los Angeles

Superior Court. The Fifth, Sixth and Seventh Causes of Action are DISMISSED WITHOUT

PREJUDICE. The Motion is GRANTED as to whether supplemental jurisdiction will be exercised over

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Case No. LA CV 2:22-06010 JAK (JPRx) Date

Jaime Camilo Camarena-Regalado v. Southern California Permanente Medical Group, et

Title

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22STCV22938.

II. Factual Background

A. Parties

Plaintiff is a resident of Los Angeles County in California. Dkt. 1, Ex. A ¶ 1. Defendants are corporations

organized under California law who are present here. Id. ¶ 2.

B. Allegations in the Complaint

The Complaint alleges that Plaintiff worked as an Emergency Services Technician at Kaiser from April

6, 2009, to March 4, 2022. Id. ¶¶ 6, 30. It is alleged that, throughout his tenure, Plaintiff regularly

received a performance rating of “Meets Expectations.” Id. ¶ 7. It is alleged that, as his employment

proceeded, Plaintiff became more outspoken about the alleged “substandard patient care that he was

seeing at Kaiser,” including claimed “understaffing in the Emergency Department (ED) that risked

patent safety.” Id. ¶ 16. It is further alleged that the “‘Rapid Medical Exam’ system was being used to

manipulate data and times that made it appear that patients were being seen and treated sooner than

they actually [were],” and that this caused improper triaging and untimely treatment. Id. ¶ 17.

The Complaint alleges that Plaintiff reported the improper care of patients to the Joint Commission on

Accreditation of Healthcare Organizations (“JCAHO”) in 2021 and 2022. Id. ¶¶ 18–22, 24. It is alleged

that Plaintiff raised these patient safety concerns, as well as others regarding alleged shortages of

critical supplies and staffing changes, “internally to Kaiser administration (supervisors and charge

nurses including but not limited to Jessica Almeida, Jesus Gomez, Jose Solzano, Lucy Rivera, and

Kathy Kigerl), Kaiser compliance, and externally to J[CA]HO.” Id. ¶¶ 23–26. It is alleged that

representatives of JCAHO visited the ED on February 22, 2022, and interviewed Plaintiff. Id. ¶ 27.

During the interview, Plaintiff allegedly “reported the toxic and retaliatory work environment created by

[the] administration’s lack of receptiveness to patient care concerns. This culture detrimentally impacted

patient care, including the loss of several staff, leaving the department further understaffed with less

experienced healthcare professionals.” Id. ¶ 28. It is alleged that several administrators, including

Almeida, Gomez and Solzano, observed Plaintiff enter and exit the place where the interview was

conducted. Id. ¶ 27.

The Complaint alleges that, on March 2, 2022, Plaintiff “took a medical leave due to the disabling

stress, anxiety, and depression he was suffering from.” Id. ¶ 29. It is alleged that Plaintiff’s employment

was terminated on March 4, 2022. Id. ¶ 30. It is alleged that “[a]s a pretext for retaliation,” Plaintiff’s

termination memorandum stated that Plaintiff had “submitted fraudulent timekeeping,” that Plaintiff’s

actions were “unacceptable, unprofessional, and dishonest,” and that “the misrepresentation of [his]

timekeeping resulted in [him] receiving pay to which [he was] not entitled.” Id.

C. Allegations in the Notice of Removal

In the Notice of Removal, Defendants contend that there is original, federal jurisdiction over this matter

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Case No. LA CV 2:22-06010 JAK (JPRx) Date

Jaime Camilo Camarena-Regalado v. Southern California Permanente Medical Group, et

Title

al.

also contend that Plaintiff was, at all relevant times, a member of United Healthcare Workers-West (the

“Union”). Dkt. 1 ¶¶ 9, 14. Defendants also argue that the terms of Plaintiff’s employment were governed

by a collective bargaining agreement between SCPMG and the Union (the “CBA”). Id.

Defendants argue that the CBA is a qualifying collective bargaining agreement under Cal. Lab. Code §

514, which creates an exception to California’s statutory overtime requirements for employees who are

subject to such agreements. Id. ¶¶ 17,19. For these reasons, Defendants argue that both the overtime

claim and the derivative claim for waiting time penalties, are preempted under the LMRA. Id. ¶¶ 20–21.

Defendants also argue that Plaintiff’s defamation claim is preempted under the LMRA for two reasons:

(1) the termination notice containing the allegedly defamatory statements was required by the CBA; and

(2) the allegedly defamatory statements arose out of investigatory proceedings required by the CBA. Id.

¶ 22. The Removal Notice alleges that the CBA states, “[n]o Employee shall be disciplined or

discharged without just cause. Any Employee who is discharged shall be informed in writing at the time

of the discharge of the reason(s) for the discharge.” Id. ¶ 24 (quoting Dkt. 1, Ex. F § 1079). Defendants

also contend that the CBA provides a process of “progressive discipline” for Union members. Id. ¶ 27.

The Removal Notice also asserts that there is supplemental jurisdiction over any of Plaintiff’s remaining

state law claims. Id. ¶ 31.

III. Preliminary Issues

A. Defendants’ RJN

“When considering a motion for judgment on the pleadings, th[e] court may consider facts that are

contained in materials of which the court may take judicial notice.” Heliotrope Gen., Inc. v. Ford Motor

Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999) (internal quotation marks and citation omitted). Federal

Rule of Evidence 201(b) provides that a court “may judicially notice a fact that is not subject to

reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2)

can be accurately and readily determined from sources whose accuracy cannot reasonably be

questioned.”

Defendants request judicial notice of Exhibit F to the Opposition, which contains a schedule of

California Minimum Wage rates from 2017–2023, as published by the California Department of

Industrial Relations. Dkt. 12 at 2, 4-6. Plaintiff does not oppose this request or deny the accuracy of the

contents of Exhibit F. “[G]overnment agency websites . . . have often been treated as proper subjects

for judicial notice.” Paralyzed Veterans of Am. v. McPherson, No. C 06-4670-SBA, 2008 WL 4183981,

at *5 (N.D. Cal. Sept. 9, 2008). Therefore, the RJN is GRANTED.

B. Plaintiff’s Evidentiary Objections

Plaintiff objects to one paragraph in the Declaration of Jo Ann Raval (Dkt. 11-1, the “Raval Declaration”)

and five paragraphs in the Declaration of Jeremy Lyon (Dkt. 11-2, the “Lyon Declaration”). See Dkt. 13-

2. Although both declarations are relevant to the issues presented in the Motion to Remand, neither is

determinative of the matters addressed in this Order. Therefore, the Evidentiary Objections are MOOT.

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Evidence at Issue Objection Ruling

Raval Decl., Dkt. 11-1 ¶ 4: “As the termination letter explains, FRE 602 [Lacks Personal MOOT (It is

on December 18, 2021, Mr. Camarena-Regalado was Knowledge]; FRE 801 [Hearsay]; unnecessary to

scheduled to work from 7:00 a.m. to 7:30 p.m. in the ER. FRE 401 [Relevance] consider the

However, security records show that Mr. Camarena-Regalado statements by

left the ER at 6:23 p.m. and went to the gym, where he stayed Raval as the

until 7:22 p.m. However, Mr. Camarena-Regalado timecard termination

records showed that he worked until 7:30 p.m. Following an letter has been

investigation, SCPMG concluded that Mr. Camarena- submitted and

Regalado engaged in timecard fraud, and received pay to can be

which he was not entitled. As a result, SCPMG issued Mr. reviewed.)

Camarena-Regalado a Level 5 discipline under the CBA and

terminated his employment.”

Lyon Decl., Dkt 11-2 ¶ 4: “Under Kaiser’s This document is not part of the OVERRULED

Corrective/Disciplinary Action Policy, discipline for represented CBA. It is a Kaiser Human

employees like Mr. Camarena-Regalado (i.e., employees who Resources Policy by its own

are covered by a CBA), is determined according to the terms. FRE 106 [Incomplete

provisions of the applicable CBA. A true and correct copy of Evidence / Out of Context]; Rule

this policy, in effect at the time of Mr. Camarena-Regalado’s 901 [Lack of Foundation].

termination and applicable to Mr. Camarena-Regalado, which

is kept and maintained in the regular course of business, is

attached as Exhibit B.”

Lyon Decl., Dkt. 11-2 ¶ 4: “The CBA utilizes a process of This misstates the content of the MOOT (It is

“progressive discipline,” where employee misconduct is SEIU CBA regarding discipline unnecessary to

generally addressed according to different factors, such as the which only states, “It is the consider the

severity of the misconduct and ensuring fairness in application Employer’s intent normally to statements by

of the discipline.” make use of progressive Lyon as the

discipline in accordance with CBA has been

established practices and policy.” submitted and

(Page 125, Exhibit C) [Incomplete can be

Evidence / Out of Context]; Rule reviewed.)

901 [Lack of Foundation].

Lyon Decl., Dkt. 11-2 ¶ 5: “As part of the CBA, Mr. Camarena- This is not part of the CBA at- OVERRULED

Regalado’s union, United Healthcare Workers-West (“Union”) issue. FRE 801 [Hearsay]; FRE

and SCPMG are parties to a “labormanagement partnership,” 401 [Relevance].

called the “National Agreement,” by which they pledged to

work together for common goals. A true and correct copy of

the National Agreement between SCPMG and the union that

was in effect on March 4, 2022 is attached as Exhibit D. The

National Agreement includes a framework for dispute

resolution under the CBA, and provides guidance and

expectations regarding the appropriate level of discipline,

which includes the ‘Issue Resolution/Corrective Action User’s

Guide.’ A true and correct copy of the “Issue

Resolution/Corrective Action User’s Guide” is attached as

Exhibit E.”

Lyon Decl., Dkt. 11-2 ¶ 6: “Although discipline under this This is not part of the CBA at MOOT (It is

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Case No. LA CV 2:22-06010 JAK (JPRx) Date

Jaime Camilo Camarena-Regalado v. Southern California Permanente Medical Group, et

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– there is no guaranteed, predetermined path for issuing statements by

discipline, and steps can be skipped based various factors Lyon as the

(i.e., each instance of a violation can range from a verbal policy has been

warning to the termination of employment, depending on the submitted and

specific facts and circumstances). When considering whether can be

to terminate employment, management must consider and reviewed.)

assess whether the misconduct is egregious enough that it

triggers a higher level of discipline under the CBA. When

management concludes that such egregious conduct

occurred, they will include that information on the termination

letter, and use words to that effect, such as ‘gross

misconduct,’ and provide the basis, such as the employee

engaged in ‘fraud’ or ‘misrepresentation,’ or that the employee

engaged in ‘dishonest’ conduct. This information is included in

the termination letter to put the represented employee and the

union on notice of their assessment and opinion, which assists

and informs the parties’ understanding for any future dispute

resolution under the CBA.”

Lyon Decl., Dkt. 11-2 ¶ 7: “The CBA contemplates that Employees are not required to MOOT (It is

employees may submit grievances regarding whether they submit and pursue their Union unnecessary to

were subject to a shift agreement, and whether overtime is grievances to exhaust. FRE 401 consider the

owed. The union, management, and the arbitrator evaluate a [Relevance]; See 14 Penn statements by

number of factors, including whether employee signed an Plaza LLC v. Pyett, 556 U.S. 247, Lyon as the

agreement, their job position, the employee’s knowledge of 258 (2009); see also Cicairos v. CBA has been

the schedule and how long they worked on the alternative Summit Logistics, Inc. 133 Cal. submitted and

schedule without raising a dispute (i.e., did the employee raise App. 4th 949, 959–60 (2005). can be

the dispute after a single pay period, or did they work for years Further, there is no explanation of reviewed.)

on the schedule), and the past patterns and practices of the why an arbitrator would have to

department, the Union, and management.” consider these factors, and what

provisions of the CBA define

these considerations and would

inquire interpretation. FRE 401

[Relevance]; Johnson v. San

Francisco Health Care & Rehab

Inc., 2022 WL 2789809, at *6

citing Wilson-Davis v. SSP Am.,

Inc., 434 F. Supp. 3d 806, 813

(C.D. Cal. 2020).

C. Defendants’ Objections to New Arguments and Evidence in Reply Brief

In their Sur-Reply (Dkt. 15, the “Sur-Reply”), which was filed without leave to do so, Defendants

objected to Plaintiff’s proffer of Kaiser Permanente’s “Guidelines for Determining Corrective/Disciplinary

Action for Serious Offenses” as Exhibit A to the Rager Declaration for the first time in the Reply (see

Dkt. 13-1, Ex. A), claiming that it is both untimely and not properly authenticated. Dkt. 15 at 5.

Defendants further argue that Exhibit A is irrelevant because it is dated in 2009, but Plaintiff was

terminated in 2022. Id. Because Exhibit A is not considered in the analysis of this Order, the objection is

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Defendants also object to the new argument in the Reply that the CBA does not satisfy the

requirements of Cal. Lab. Code § 514. Id. at 3–4. Defendants argue that “[b]y waiting until [the] reply,

Plaintiff has deprived Defendants of a full and fair opportunity to respond to his arguments, including

why they are wrong, or why Plaintiff’s citations to new authorities are misleading, distinguishable, or do

not support her arguments.” Id. at 3. Plaintiff responds that the argument regarding Section 514 is

“exclusively” a reply to an argument raised in the Opposition. Dkt. 16 at 2. Plaintiff further states that the

Sur-Reply was filed without leave to do so, and that Plaintiff “will not address the errors made in the

arguments (and admission) that Kaiser is 99.99% compliance with the requirement to pay all their union

employees 130% of the minimum wage.” Id.

Although the Sur-Reply was filed without leave to do so, it is considered because Plaintiff’s did not

present arguments as to whether the CBA qualified under Section 514 in its initial briefing. Because

Defendants’ arguments regarding Section 514 proffered in the Notice of Removal, the Opposition and

Sur-Reply, have all been considered, there is no prejudice caused by the new positions stated in the

Reply. Therefore, Defendant’s request to strike the new arguments is DENIED, and leave to file the

Sur-Reply is GRANTED.

IV. Analysis

A. Legal Standards

Section 301 of the Labor Management Relations Act (“LMRA”) “vests federal courts with jurisdiction to

hear suits ‘for violation of contracts between an employer and a labor organization representing

employees in an industry affecting commerce … without respect to the amount in controversy or

without regard to the citizenship of the parties.’ ” McCray v. Marriott Hotel Servs., Inc., 902 F.3d 1005,

1009 (9th Cir. 2018) (quoting 29 U.S.C. § 185(a)). “By enacting the LMRA, Congress completely

preempted state law for certain labor-related claims.” Id. “In these areas, ‘the preemptive force of § 301

is so powerful as to displace entirely any state cause of action for violation of contracts between an

employer and a labor organization. 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 § 301.’ ” Id. (quoting Franchise Tax

Bd. v. Construction Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 23 (1983)). “In other words, a civil

complaint raising claims preempted by § 301 raises a federal question that can be removed to a federal

court.” Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1152 (9th Cir. 2019).

“Critically, ‘not every dispute concerning employment, or tangentially involving a provision of a

collective-bargaining agreement, is pre-empted by § 301.’ ” Kobold v. Good Samaritan Reg'l Med. Ctr.,

832 F.3d 1024, 1032 (9th Cir. 2016) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985)).

“[T]he Supreme Court has stressed that ‘§ 301 cannot be read broadly to pre-empt nonnegotiable rights

conferred on individual employees as a matter of state law.’ ” Curtis, 913 F.3d at 1152. “For this reason,

‘[s]etting minimum wages, regulating work hours and pay periods, requiring paid and unpaid leave,

protecting worker safety, prohibiting discrimination in employment, and establishing other worker rights

remains well within the traditional police power of the states,’ and claims alleging violations of such

protections will not necessarily be preempted, even when the plaintiff is covered by a CBA.” Id. at

1152 (quoting Alaska Airlines v. Schurke, 898 F.3d 904, 919–20 (9th Cir. 2018) (en banc)).

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The Ninth Circuit has adopted a two-step process to determine whether a claim is preempted under §

301. Curtis, 913 F.3d at 1152. First, if the “asserted cause of action involves a ‘right [that] exists solely

as a result of the CBA,’ ” then “ ‘the claim is preempted, and [the] analysis ends there.’ ” Id. (alteration

in original) (first quoting Kobold, 832 F.3d at 1032; then quoting Burnside v. Kiewit Pac. Corp., 491 F.3d

1053, 1059 (9th Cir. 2007)). “The essential inquiry is this: Does the claim seek ‘purely to vindicate a

right or duty created by the CBA itself[?]’ ” Id. (alteration in original) (quoting Schurke, 898 F.3d at 921).

Second, if a “plaintiff's state law right is substantially dependent on analysis” of the CBA, then the claim

is preempted. Curtis, 913 F.3d at 1153 (quoting Kobald, 832 F.3d at 1033). This second step “turns on

whether the claim cannot be resolved by simply ‘look[ing] to’ versus ‘interpreting’ the

CBA.” Id. (quoting Kobold, 832 F.3d at 1033). In this context, “interpretation” is “construed narrowly”

and a state claim may “avoid preemption if it does not raise questions about the scope, meaning, or

application of the CBA.” Id. “[C]laims are only preempted to the extent there is an active dispute over

‘the meaning of contract terms.’ ” Id. (quoting Schurke, 898 F.3d at 921).

B. Analysis

1. Whether the Overtime Claim is Preempted

a) Burnside Step 1: Whether the Right Exists Solely as a Result of the CBA

Defendants argue that the overtime pay requirements stated in Section 510 of the California Labor

Code do not apply to Plaintiff because he is covered by a qualifying CBA under Section 514. Dkt. 11 at

16–17. California Labor Code Section 510(a) provides a default rule for overtime pay. Curtis, 913 F.3d

at 1153. It does not, however, apply to employees “working pursuant to . . . [a]n alternative workweek

schedule adopted pursuant to a collective bargaining agreement pursuant to Section 514.” Id. (quoting

Cal. Lab. Code § 510(a)(2)). Section 514 provides:

Sections 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.

Cal. Lab. Code § 514.

Plaintiff argues that Section 514 does not apply for two independent reasons. First, Plaintiff contends

that the CBA does not provide a regular hourly rate of pay of at least 130% of the state minimum wage

for all Union employees. Dkt. 13 at 7–9. Second, Plaintiff argues that he never signed a waiver to work

pursuant to an alternative workweek under the CBA. Dkt. 13 at 10–11.

i. Whether the CBA Is a Qualifying CBA Under Section 514

Plaintiff argues that, under the plain language of Section 510, a collective bargaining agreement “must

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Mgmt., Inc., 2022 WL 1589297, at *3 (S.D. Cal. Mar. 14, 2022); see also Huffman v. Pacific Gateway

Concessions LLC, 2019 WL 2563133, at *5–6 (N.D. Cal. June 21, 2019). Most district courts within the

Ninth Circuit that have considered the issue have reached the same conclusion: A collective bargaining

agreement must provide 130% of the minimum wage to every employee covered by the agreement in

order to qualify for the Section 514 exemption as to any employee.1

Plaintiff identifies six jobs in the CBA wage scales with hourly wages that are less than $19.50, or 130%

of the 2022 minimum wage of $15.00. Dkt. 13 at 9 (citing Dkt. 11-2, Ex. C at 155, 164, 198, 260).

Defendants argue that Plaintiff incorrectly compared the 2022 minimum wage with the 2020 wage rates

in the CBA. Dkt. 15 at 4. Defendants contend that only two of the six jobs identified by Plaintiff had

hourly wage rates that fell below 130% of the 2020 minimum wage. Id.2 In light of the thousands of jobs

listed in the CBA, whether two or six were paid less than 130% of the minimum wage is not material.

The issue is whether a collective bargaining agreement that provides for a wage rate of at least 130%

of the minimum wage for almost all employees may qualify for the exemption under Section 514.

Defendants seek to distinguish the cases cited by Plaintiff “because none of them involve a CBA with a

99.99% compliance rate, and all of them are class actions involving claims pertaining to an entire group

of employees.” Dkt. 15 at 4. Defendants contend that the only decision within this District that

addressed a similar collective bargaining agreement held that Section 514 was satisfied where “the

vast majority of employee-categories in the CBA are assigned hourly rates of pay that greatly exceed §

514’s requirement.” Id. (quoting Sachs v. Pankow Operating, Inc., 2022 WL 489696, at *6 (C.D. Cal.

Feb. 16, 2022)).

Sachs, which presented a thoughtful analysis, did not distinguish between representative and non-

representative actions, as Defendants suggest. Dkt. 15 at 4. Sachs involved a representative action.

2022 WL 489696, at *6. Nor did any of the cases cited by Plaintiff discuss the representative nature of

those cases. Sachs did not distinguish Huffman by asserting that there was a 99.99% compliance rate

as to the collective bargaining agreement at issue, but not as to the one in Huffman. Sachs also

1 See, e.g., Gunther v. N. Coast Coop., Inc., 2020 WL 3394547, at *4 (N.D. Cal. June 19, 2020) (“This district has

interpreted § 514 to require that a CBA must satisfy the section's requirements with respect to all employees

covered by the CBA.”); Calderon v. Physicians for Healthy Hosps., Inc., No. 520CV01875JWHSPX, 2021 WL

871985, at *4 (C.D. Cal. Mar. 9, 2021) (same); Johnson v. San Francisco Health Care & Rehab Inc., 2022 WL

2789809, at *3-4 (N.D. Cal. July 15, 2022) (same); Sarmiento v. Sealy, Inc., No. 18-CV-01990-JST, 2019 WL

3059932, at *9 (N.D. Cal. July 12, 2019) (same); Rooney v. Save Mart Supermarkets, No. 220CV00671JAMFEB,

2020 WL 3819481, at *3 (E.D. Cal. July 8, 2020) (same); Cranton v. Grossmont Hospital Corporation, No. 22-CV-

443 JLS (MDD), 2022 WL 16572028, at *6 (S.D. Cal. Nov. 1, 2022) (same); Berreyes v. Southern California Gas

Company, No. 5:22-cv-01223-SSS-SPx, 2023 WL 2536720, at *2–3 (C.D. Cal. Mar. 16, 2023) (same). Cf. Div. of

Lab. Standards Enf't v. Save Mart Supermarkets, No. 221CV07402ODWEX, 2022 WL 837206, at *5 (C.D. Cal.

Mar. 21, 2022) (following Huffman in interpreting the nearly identical language of Cal Lab. Code § 245.5(a)).

2 The copy of the CBA provided by Defendants in support of the Opposition states that it is “[e]ffective [t]hrough

September 30, 2023. Dkt. 11-2 Ex. C at 10. The CBA also states that the wage rates are “[e]ffective October 11,

2020.” See, e.g., id. at 152. Defendants do not provide any evidence that the wage rates have been updated.

Further, in the Lyons Declaration, which was signed on October 6, 2022, he declares that “[a] true and correct

copy of the CBA that applied to Mr. Camarena-Regalado, which is updated and maintained in the regular course

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“acknowledge[d]” that the Huffman court’s view is “a reasonable view and has been adopted by others”

and that arguments in favor of that view “have merit.” Id. at *5. Sachs then concluded that “it is not

evident that they apply to this Court's reading of § 514, namely that the plural terms ‘the employees’

and ‘those employees’ refer not to all of the employees covered by a CBA but to all employees within

the same classification as the employee bringing the action.” Id.

In considering all of the cited cases, it is determined that the interpretation in Huffman is more

persuasive. Accordingly, Plaintiff’s overtime claim “involves a right conferred upon an employee by

virtue of state law, not by a CBA.” See Huffman, 2019 WL 2563133, at *6.

ii. Whether a Qualifying CBA Would Apply to Plaintiff

Plaintiff argues that his overtime claim would not be preempted by the CBA, even if it were qualifying

because he was not “working pursuant to . . . [a]n alternative workweek schedule adopted pursuant to a

collective bargaining agreement pursuant to Section 514.” Cal. Lab. Code § 510(a)(2). Plaintiff alleges

that he never signed the “alternative workweek / overtime waiver.” Dkt. 13 at 10 (citing Dkt. 1-1 ¶ 79).

Plaintiff claims that, because the waiver was required for an employee to be subject to the CBA, the

CBA does not apply to his overtime claim. Id. at 10–11.

Defendants argue that determining whether the overtime provisions of the CBA applied to Plaintiff, in

light of his alleged failure to sign the waiver, requires an interpretation of the CBA. Dkt. 11 at 20–21.

Therefore, this issue is considered as part of the second step of the Burnside test.

b) Burnside Step 2: Whether the State Law Right Is Substantially Dependent

on the CBA

Plaintiff argues that his overtime claim does not require any interpretation of the CBA because its

provision on overtime rates is identical to that under California law, as codified at California Labor Code

§ 510 and IWC Wage Order 5-2001, § 3(b)(8a–b). Dkt. 10 at 20; Dkt. 13 at 14–15. The CBA includes

the following terms:

D. Alternative Schedules.

The foregoing notwithstanding, nothing in this Section will preclude the

establishment of Alternative Schedules (e.g. 10 hour shifts/12 hour shifts)

at straight time pursuant to those Agreements.

E. Overtime Rates.

1. Hours Worked in Excess of 8 in a Day or 40 Hours in a Week.

All hours worked in excess of eight (8) in any day, or in excess of

forty (40) in one (1) week, shall be paid at the overtime rate of one

and one-half (1 1/2) times the straight time hourly rate.

. . .

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All hours worked in excess of twelve (12) hours in one (1) day shall

be paid at the rate of two (2) times the straight time hourly rate.

Dkt. 11-2, Ex. C at 51.

Plaintiff also argues that, even if the language in the CBA were not identical to California law, no

interpretation of the CBA would be required because a court could simply apply the undisputed

overtime rates and wage rates listed in the CBA. Dkt. 10 at 20–21. Plaintiff also argues there is no need

to consider the CBA because Section 510 simply requires knowledge of an employee’s regular rate of

pay in order to determine whether the employee was compensated for overtime in accordance with

California law. Id. at 21. Plaintiff asserts that his regular wage rate would be readily ascertainable from

his paystubs. Id.

Defendants respond that the overtime claim is substantially dependent on the CBA because the

essence of that claim is whether Plaintiff was working a 12-hour shift schedule under the CBA, not how

to calculate overtime. Dkt. 11 at 20. Defendants contend that “Plaintiff worked an Alternative Schedule

since 2013, but now after 9 years of working and being paid pursuant to the terms of that schedule,

disputes that those provisions of the CBA apply to him.” Id. at 12 (citing Raval Decl., Dkt. 11-1 ¶ 3)

(emphasis in original). If Plaintiff agreed to work a 12-hour shift under the CBA, no overtime would be

owed. Id. at 20. Defendants argue that, under the CBA, disputes regarding the “10 and 12 hour shift

letters of agreement” are subject to the grievance and arbitration procedure set forth in the SEIU Cross-

Regional Master Agreement. Id. at 12 (citing Dkt. 11-2, Ex. C at 404).

In support of this position, Defendants cite Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024

(9th Cir. 2016). Id. at 20–21. There, a nurse claimed that she was owed the premium rate for extra

shifts because the CBA “provided that nurses are to be paid one and one-half times their regular pay

rate for all hours worked above their regularly scheduled full-time equivalent shifts ‘except when there is

a change of schedule agreed upon by the Medical Center and nurse.’ ” Kobold, 832 F.3d at 1036. The

issue in Kobold was “[w]hether or not there was an agreed upon change of schedule.” Id. The CBA did

not “directly and clearly explain what constitutes a ‘change of schedule,’ nor how an agreement . . . is to

be made.” Id. The court concluded that it had to “interpret the meaning of the agreement exception to

resolve Kobold's state law claims,” and, for this reason, the claims were preempted. Id.

Defendants argue that determining whether and how Plaintiff agreed to a 12-hour shift requires

interpretation of the CBA and consideration of past practices with the Union. Dkt. 11 at 20–21.

Defendants then contend that “[a]n arbitrator would consider, at minimum, Plaintiff signing of a shift

agreement, his job position, Plaintiff’s knowledge of the 12-hour shift schedule, how long he worked

that schedule without raising any issues, and the past patterns and practices of the department, the

Union, and management.” Id. at 21 (citing Lyon Decl., Dkt. 11-2 ¶ 7). Defendants also claim that “these

factors and considerations are inherently part of the interpreting the CBA.” Id. (first citing Kobold, 832

F.3d at 1046 (“Under longstanding labor law principles, the scope and meaning of a collective

bargaining agreement is not limited to the text of the agreement. Instead, the industrial common law—

the practices of the industry and the shop—is equally a part of the collective bargaining agreement

although not expressed in it.”); then citing Curtis, 913 F. 3d at 1152 (“[B]ecause the CBA is designed to

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anticipated, it calls into being a new common law—the common law of a particular industry or of a

particular plant.”)).

Plaintiff replies that the Defendants have not explained why an arbitrator would have to consider these

factors, and what specific provisions of the CBA would have to be interpreted. Dkt. 13 at 12. Plaintiff

contends that Defendants have not met their burden of showing that interpretation of, and not merely

reference to, the CBA is required. Id. Plaintiff argues “the issue is simple:” he “either signed the waiver

or he did not.” Id.

Kobold applies here. There, and in this case, the resolution of the overtime claim depends on whether

the plaintiff agreed to an alternative workweek schedule. In both cases, the CBA provided no guidance

on how an agreement is to be made. Therefore, as in Kobold, an arbitrator must interpret the CBA and

apply “the industrial common law,” including the “practices of the industry and the shop,” to determine

whether an alternative workweek agreement exists. See Kobold, 832 F.3d at 1046 (quoting United

Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581–82 (1960)).

Therefore, the sixth cause of action for overtime pay is preempted.

2. Whether the Waiting Time Penalties Claim is Preempted

Defendants argue that the seventh cause of action for waiting time penalties in preempted because it is

derivative of the overtime claim. Dkt. 1 ¶ 21. Plaintiff does not dispute this contention. Therefore, the

seventh cause of action for waiting time penalties is preempted.

3. Whether the Defamation Claim is Preempted

Plaintiff argues that the cause of action for defamation is “purely a creation of State law” because

“whether or not the content of a document is Defamatory under California law requires no

consultation, reference to or interpretation of the CBA.” Dkt. 10 at 23–24 (emphasis in original).

Defendants respond that the defamation claim is preempted because the alleged defamatory

statements were made solely in a discharge notice required by the CBA. Dkt. 11 at 22–23. The CBA

provides: “No Employee shall be disciplined or discharged without just cause. Any Employee who is

discharged shall be informed in writing at the time of the discharge of the reason(s) for the discharge.”

Dkt. 11-2, Ex. C at 139. It also states that the employer will “furnish copies of necessary and/or relevant

documents or written statements used by the Employer as a basis for the disciplinary action” at the

request of the employee or Union. Id. at 140.

Shane v. Greyhound Lines, Inc., 868 F.2d 1057 (9th Cir. 1989) held that a defamation claim brought by

an employee was preempted under similar circumstances. It noted that the collective bargaining

agreement at issue “require[d] employers to notify employees of intended disciplinary action in writing,

and simultaneously to notify their Union.” Id. at 1063. Shane then concluded that “[a]ny claim based on

the discharge notification is, therefore, ‘inextricably intertwined’ with the CBA.” Id. (quoting Allis–

Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985)).

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Shane applies to this action. Plaintiff contends that preemption is not warranted because, unlike the

plaintiff in Shane, he properly alleged that Defendants maliciously republished the alleged defamation

outside of Union activity. Dkt. 13 at 6 (citing Dkt. 1-1 ¶¶ 67, 69). The Complaint alleges that “[i]t was

reasonably foreseeable that these statements would by republished by Plaintiff” and that “[t]he

statements constitute defamation per se/per quod” because “[t]hey were made with malice as a pretext

for an illegal termination.” Dkt. 1-1 ¶¶ 67, 69.

Assuming, without deciding, that the malicious republication of defamatory statements beyond a

discharge notice precludes preemption, Plaintiff’s claim would still be preempted because he does not

allege that Defendants republished any defamatory statements. The Complaint only alleges that it was

“reasonably foreseeable” that he would republish them. Dkt 1 ¶ 67. As in Shane, the notice of discipline

is “the only document[] in the record containing the allegations of wrongdoing,” and Plaintiff fails to

allege “to whom the defamatory information was published.” 868 F.2d at 1063. Moreover, Plaintiff’s own

republication of the statements would not satisfy this standard.

Therefore, Plaintiff’s fifth cause of action for defamation is preempted, and it is unnecessary to address

the second prong of the Burnside analysis.

4. Whether the Preempted Claims Should Be Dismissed

Plaintiff seeks the dismissal of any preempted claims, and the remand of the remaining ones. Dkt. 10 at

31. Defendants argue that this request is improper under the forum manipulation rule for removed

cases, which provides that a plaintiff’s voluntary amendment eliminating the original basis for

jurisdiction generally does not defeat jurisdiction. Dkt. 11 at 28 (citing Rockwell Int’l Corp. v. United

States, 549 U.S. 457, 474 n.6 (2007)). Defendants also claim that Plaintiff is attempting to engage in

forum manipulation by requesting that the Court dismiss any claims “if (and only if)” they are

determined to be preempted. Id.

“When resolution of a state-law claim is substantially dependent upon analysis of the terms of a

collective-bargaining agreement, that claim must either be treated as a § 301 claim or dismissed as

pre-empted by federal labor-contract law.” Allis-Chalmers Corp, 471 U.S. at 220–221 (requiring

dismissal either for “failure to make use of the grievance procedure established in the collective-

bargaining agreement” or “dismissal as pre-empted by § 301”). Thus, that a claim is preempted under

Section 301 does not mandate its dismissal. See Jackson v. S. California Gas Co., 881 F.2d 638, 646

(9th Cir. 1989). An employee may pursue a preempted § 301 claim in federal court if the employee has

exhausted grievance procedures in the applicable collective bargaining agreement or can show that the

union breached its duty of fair representation. Id.; Republic Steel Corp. v. Maddox, 379 U.S. 650, 652–

53 (1965) (an employee generally may not bring an action for breach of a collective bargaining

agreement unless he has exhausted contractual grievance procedures); Vaca v. Sipes, 386 U.S. 171,

185–86 (1967) (a party may obtain judicial review of his claim despite his failure to exhaust contractual

remedies if he can show that the union breached its duty of fair representation).

Plaintiff argues that he did not have to follow a grievance procedure both because the CBA lacks a

clear and unmistakable waiver of the right to bring an action in a judicial forum, and the failure to

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proof. Dkt. 10 at 21–22. In the Opposition, Defendants do not discuss whether Plaintiff was required to

exhaust his remedies under the CBA.

When it is determined that a claim is preempted in the context of a motion to remand, some courts deny

remand without dismissing or discussing the viability of the preempted claims. See, e.g., Torres v.

Southern Cal. Permanente Med. Grp., No. CV221910MWFMARX, 2022 WL 2116339, at *8 (C.D. Cal.

June 13, 2022). Other courts have dismissed preempted claims under similar circumstances, without

discussing their viability. See, e.g., Lee v. CVS Pharmacy, Inc., No. LACV1600160JAKEX, 2016 WL

8711500, at *5 (C.D. Cal. July 29, 2016) (“Because Plaintiff's defamation claim is preempted by Section

301, the claim is dismissed”); Kirton v. Summit Med. Ctr., 982 F. Supp. 1381, 1389 (N.D. Cal. Aug. 29,

1997) (“[B]ecause . . . the CBA governs the allegedly defamatory conduct, Plaintiff's defamation claim is

preempted by section 301 and dismissed.”).

The argument advanced by Defendants as to claimed “forum manipulation” is not persuasive. Sparta

Surgical Corp. v. National Ass’n of Sec. Dealers, Inc., 159 F.3d 1209 (9th Cir. 1998), which is among

the cases cited by Defendants, is distinguishable. Sparta held that because “jurisdiction must be

analyzed on the basis of the pleadings filed at the time of removal without reference to subsequent

amendments . . . [A] plaintiff may not compel remand by amending a complaint to eliminate the federal

question upon which removal was based.” Id. at 1213. Unlike the plaintiff in Sparta and other cases on

which Defendants rely, Plaintiff is not seeking to amend his complaint to warrant the remand of claims

that would otherwise be subject to exclusive, federal jurisdiction. Instead, Plaintiff has requested the

dismissal of any claims that are determined to be preempted. Dkt. 10 at 31. Defendants also cite

opinions in which supplemental jurisdiction over remaining state claims was accepted notwithstanding

the dismissal or settlement of the claims that were the sole basis for federal jurisdiction at the time of

removal. See, e.g., Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 715 (9th Cir. 1990).

This does not concern whether it is appropriate to dismiss the claims that have been found to be

preempted. The decision whether to exercise supplemental jurisdiction over the remaining state law

claims, or remand them, is addressed in the following section.

As in Lee and Kirton, the dismissal of the preempted claims is warranted. Therefore, the Fifth, Sixth and

Seventh Causes of Action are DISMISSED.

5. Whether the Court Should Exercise Supplemental Jurisdiction Over the

Remaining State Law Claims

Where there is original jurisdiction over a claim, “the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims in the action within such original

jurisdiction that they form part of the same case or controversy under Article III of the United States

Constitution.” 28 U.S.C. § 1367(a); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725

(1966); Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (“A state law claim is part of the

same case or controversy when it shares a ‘common nucleus of operative fact’ with the federal claims

and the state and federal claims would normally be tried together.”) (quoting Trustees of the Constr.

Indus. and Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925

(9th Cir. 2003)). “The decision to exercise [supplemental] jurisdiction remains discretionary with the

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A district court may decline to exercise supplemental jurisdiction over a claim even if it arises out of a

common nucleus of operative facts with a claim for which there is federal subject matter jurisdiction.

Declining to exercise such jurisdiction is appropriate under the following circumstances:

(1) the claim raises a novel or complex issue of State law, (2) the claim substantially

predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in

exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c); see also Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011).

The remaining claims include the following: the First Cause of Action, which alleges a violation of Cal.

Lab. Code §§ 1102.5–1105; the Second Cause of Action, which alleges wrongful termination in

violation of public policy; the Third Cause of Action, which alleges retaliation in violation of Cal. Health &

Safety Code § 1278.5; and the Fourth Cause of Action, which alleges California Family Rights Act

(“CFRA”) interference in violation of Cal. Gov’t Code § 12945.2 and Cal. Code Regs. tit. 2, §§ 7297.4,

7297.9, 11091. Dkt. 1-1 ¶¶ 31–72. Each cause of action concerns the facts surrounding Plaintiff’s

termination. Id.

Plaintiff argues that if any claim is preempted, the Court should decline to exercise supplemental

jurisdiction over the remaining state law claims. Dkt. 10 at 27. First, Plaintiff argues that having the state

law claims adjudicated in the Superior Court is appropriate as a matter of comity. Id. at 27–28. Second,

Plaintiff argues that no prejudice would result to Defendants in light of the early stage of litigation. Id. at

28. Third, Plaintiff contends that his retaliation claim under Cal. Lab. Code § 1102.5 raises novel and

complex issues of state law because Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703

(2022), presents a new burden-shifting structure for such claims. Id. at 29–30. Finally, Plaintiff contends

that the first four causes of action, which concern retaliation, are the “gravamen” of this case, while the

three potentially preempted claims are “ancillary.” Id. at 30.

In the Opposition, Defendants advance the conclusory position that the state law claims “are so related

to the preempted claims that they emanate from, and form part of, the same ‘case or controversy,’ such

that they should all be tried in one action.” Dkt. 11 at 27–28 (citing 28 U.S.C. § 1367(a); Nishimoto, 903

F.2d at 714).

The overtime claim and derivative waiting time penalties claim do not share a common nucleus of

operative facts with the remaining claims. Plaintiff’s contention that he should have been paid overtime

because he never signed an agreement to work an alternative schedule, is independent of his

contention that he was terminated in retaliation for whistleblowing. In contrast, Plaintiff’s defamation

claim is inextricably intertwined with his other claims because Plaintiff alleges that the content of the

discharge notice served as pretext for his wrongful termination. Therefore, there could be a basis for

exercising supplemental jurisdiction over all four state law claims. This would not change if the

defamation claim were dismissed. See Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir.

1991) (“It is generally within a district court’s discretion either to retain jurisdiction to adjudicate the

pendent state claims or to remand them to state court” even after the basis for removal jurisdiction is

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Considering all of the foregoing issues, in the exercise of discretion, supplemental jurisdiction is

declined. There is no claim remaining over which there was original federal jurisdiction, and certain

elements of the claims raise somewhat novel issues under California law. See Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 n.7 (1988), superseded on other grounds by statute, 28 U.S.C. § 1447(c), as

recognized in Fent v. Oklahoma Water Res. Bd., 235 F.3d 553, 557 (10th Cir. 2000) (“[I]n the usual

case in which all federal-law claims are eliminated before trial, the balance of factors to be considered

under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point

toward declining to exercise jurisdiction over the remaining state-law claims.”); Sanford v.

MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“Because we conclude that the district court

properly dismissed all of the federal-law claims and the balance of factors does not tip in favor of

retaining the state-law claims, we cannot say that the district court abused its discretion in dismissing

the state-law claims without prejudice.”).

Therefore, the First, Second, Third and Fourth causes of action are REMANDED.

6. Whether a Ruling on the Motion Should be Deferred Pending the Filing of an

Amended Complaint

If dismissal of any preempted claims was “not feasible,” Plaintiff requested that the Court defer ruling on

the Motion until an amended complaint is filed. Dkt. 10 at 31. Because a determination has been made

that the claims will be dismissed, this request is MOOT.

V. Conclusion

For the reasons stated in this Order, the Motion is GRANTED-IN-PART AND DENIED-IN-PART. The

Motion is DENIED as to the request that this entire action be remanded. The Fifth, Sixth and Seventh

Causes of Action are DISMISSED WITHOUT PREJUDICE. The Motion is GRANTED as to the request

that this Court decline supplemental jurisdiction over the remaining state law claims. Therefore, the

First, Second, Third and Fourth Causes of Action are REMANDED to the Los Angeles Superior Court

at its Stanley Mosk Courthouse, Case No. 22STCV22938.

IT IS SO ORDERED.

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