HEARING ON MOTION TO/FOR STRIKE PORTIONS OF COMPLAINT FOR
DAMAGES FILED BY GREENWORKSUS
* TENTATIVE RULING: *

Defendant Greenworks US’s motion to strike portions of the Complaint is granted in part. The reference to Code of Civil Procedure Section 1198 in paragraph 29 of the Complaint is stricken. Plaintiffs apparently intended to cite Labor Code Section 1198 rather than Code of Civil Procedure Section 1198. Plaintiffs are granted ten days leave to amend. With regard to the other provisions of the Complaint which defendant seeks to have stricken, the motion is denied.

This is a putative class action alleging that defendant failed to provide its telemarketer employees with statutorily required meal breaks and failed to provide them with accurate wage statements. Defendant moves to strike various portions of the Complaint, including the request for attorneys’ fees made in Paragraph 7 of the prayer for relief and references to statutory provisions that defendants argue are improperly cited in support of the claim for attorneys’ fees. Defendant argues that attorneys’ fees are not available as relief for a claim of meal break violations under Labor Code Section 226.7 and the ruling in Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal. 4th 1244, and therefore those portions of the complaint requesting attorneys’ fees and cited in support of that request should be stricken as improper.

The holding in Kirby, however, is not as broad as defendant argues it to be. In Kirby, the employer-defendant sought an award of attorneys’ fees under Labor Code Section 218.5. Id. at 1248. (All further statutory references are to the Labor Code unless otherwise specified.) Section 218.5 provides, in relevant part, that “[i]n any action brought for the nonpayment of wages … the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action.” The Supreme Court held that the fee-shifting provision of Section 218.5 did not apply to a rest break claim under Section 226.7, as the gravamen of a 226.7 claim was not nonpayment of wages, but the requirement that employees be provided a meal break. Kirby, supra, 53 Cal.4th at 1256. The Court further considered whether an award of attorneys’ fees to a prevailing employee in a case regarding violations of Section 226.7 was authorized under Section 1194, which provides for such an award in a case regarding unpaid overtime or failure to pay minimum wage. Again, it found that the attorneys’ fees provision of Section 1194 did not apply to cases regarding Section 226.7 violations. The Court did not consider, and did not decide, whether there might be other statutory grounds for an award of attorneys’ fees in a case brought under Section 226.7. It did not hold, as defendant argues, that an award of attorneys’ fees for meal or rest break violations is “not a proper remedy” for meal or rest break violations. Memorandum of Points and Authorities in Support of Motion to Strike, p. 4.

Plaintiffs’ request for attorneys’ fees to be awarded in this case relies on neither Section 218.5 nor Section 1194. Plaintiffs request an award of attorneys’ fees for their first cause of action under Code of Civil Procedure Section 1021.5, providing for an award of fees in a case “resulting in the enforcement of an important right affecting the public interest.” Attorneys’ fees may be awarded under Section 1021.5 in a class action regarding Labor Code violations. Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App. 4th 1, 16-17. Plaintiffs have adequately pled their request for fees under Section 1021.5. On their second cause of action, regarding the wage statement claims, plaintiffs request attorneys’ fees under Labor Code Section 226 (e) which specifically provides that an award of fees to a prevailing employee in a case regarding wage statement violations. Plaintiffs have thus stated adequate statutory bases for their request for attorneys’ fees. There is nothing that is “irrelevant, false or improper” about the request such that it should be stricken pursuant to Code of Civil Procedure Section 436, or Code of Civil Procedure Section 431.10.

Defendant also asks that the other statutory citations in the Complaint be stricken as not relevant to plaintiffs’ claim for attorneys’ fees. The statutory citations sought to be stricken are cited in support of plaintiffs’ claims generally and requests for other types of relief. There is nothing improper or irrelevant about them. The sole exception is plaintiff’s reference to Code of Civil Procedure Section 1198, in paragraph 29 of the Complaint. As is clear from plaintiffs’ opposition to the motion, plaintiffs intended to cite Labor Code Section 1198, rather than the nonexistent Code of Civil Procedure Section 1198. Opposition Brief at p. 7, fn.5 The motion is granted only as to the reference to Code of Civil Procedure Section 1198 in paragraph 29 of the Complaint. Plaintiffs are granted ten days leave to amend.

E-Filing

The court will order the case to e-filing on the LexisNexis e-filing service effective April 1st, 2014. If any party wishes to object, it must do so on or before March 25th, 2014.