Vasserman v. Henry Mayo Newhall Memorial Hospital (65 F. Supp. 3d 932, 2014)

United States District Court for the Central District of California 2014-12-05

Judiciary and Judicial Procedure

Citations

Full opinion text

ORDER GRANTING PLAINTIFF’S MOTION TO REMAND AND DENYING DEFENDANT’S MOTION TO DISMISS AS MOOT

MARGARET M. MORROW, District Judge.

On June 18, 2014, Tanya Vasserman filed this putative class action in Los Ange-les Superior Court against Henry Mayo Newhall Memorial Hospital (“Newhall Memorial”) and various fictitious defendants, alleging violations of state wage and hour laws’. Newhall Memorial removed the action on August 8, 2014, invoking the court’s federal question jurisdiction under 28 U.S.C. § 1331, and diversity jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). Newhall Memorial asserts the court has federal question jurisdiction because Vas-serman’s state law claims are preempted by the Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185. It asserts additionally that if no federal question is presented, there is minimal diversity and the amount in controversy exceeds $5 million.

■ On September 8, 2014, Vasserman filed a motion to remand the action to Los Angeles Superior Court for lack of subject matter jurisdiction. The same day, New-hall Memorial filed a motion to dismiss Vasserman’s complaint for failure to grieve and arbitrate her claims. On October 7, 2014, the court entered an order extending the time for the parties to file opposition to the motions to November 3, 2014. On November 3, 2014, Newhall Memorial opposed Vasserman’s motion to remand, and Vasserman opposed Newhall Memorial’s motion to dismiss.

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds this matter appropriate for decision without oral argument. The hearing calendared for December 8, 2014, is therefore vacated, and the matter taken off calendar.

I. FACTUAL BACKGROUND

A. Facts Alleged in the Complaint

1. Factual Allegations Concerning All Plaintiffs

Vasserman is a clinical registered nurse who, prior to this litigation, worked at Newhall Memorial as an hourly, non-exempt employee. She and the members of the putative class she seeks to represent are current and former employees of New-hall Memorial who were allegedly paid im- ■ proper wages under Newhall Memorial’s straight time pay plan and/or rounding pay plan, and were denied compliant meal periods as required by California law.

a. Newhall Memorial’s Alleged Failure to Pay All Wages Earned and Appropriate Overtime Compensation

Vasserman alleges, on information and belief, that pursuant to an established business practice and policy, Newhall Memorial schedules its non-exempt hourly employees to work in excess of eight hours a day; at times, it purportedly schedules employees to work shifts in excess of ten and twelve hours. Additionally, Newhall Memorial’s patient care employees, who include clinical registered nurses like Vas-serman, are allegedly scheduled for shifts that exceed eight hours a day and eighty hours per pay period but do not receive straight time and overtime pay as required bylaw.

Vasserman asserts that Newhall Memorial’s policy is to pay straight time, rather than overtime, for all hours worked in excess of eight hours a day. Because overtime hours are paid at the employee’s base rate of pay, rather than at time-and-a-half, Newhall Memorial purportedly pays hourly, non-exempt employees less overtime compensation than they are guaranteed under the California Labor Code. Vasserman alleges that Newhall Memorial designed its overtime compensation policy intentionally to deny its employees a premium rate for overtime hours and to avoid the payment of overtime altogether despite the fact that it has not received a statutory exemption under the California Labor Code.

b. Newhall Memorial’s Allegedly Improper Meal Policies

Vasserman also alleges that Newhall • Memorial’s meal period policies violate the California Labor Code and Wage Order 5-2001 of the California Industrial Welfare Commission (“IWC”). Specifically, she asserts that Newhall Memorial violates state law by failing to provide her and other hourly, non-exempt employees compliant meal periods; she asserts that it does, so despite having not received a valid waiver of the meal period requirement or having qualified for any. statutory exemption. Vasserman alleges that she and other class members consistently worked in excess of Eve hours without meal breaks because Newhall Memorial regularly discouraged them from taking meal breaks and impeded their ability to take the breaks.- Vasserman was also allegedly-required to answer pager messages during meal breaks, when they were provided, which prevented her from taking an uninterrupted break.

c. Newhall Memorial’s Alleged Failure to Provide Itemized Wage Statements

Vasserman alleges, on information and belief, that in addition to Newhall Memorial’s allegedly unlawful overtime and meal period policies, it consistently failed to provide its employees itemized wage statements in accordance with California Labor Code § 226. Specifically, she asserts that Newhall Memorial provided wage statements that did not accurately reflect the employee’s actual regular rate of pay; the total hours worked by the employee during the pay period; the net wages earned; the name and address of the employer; and the applicable hourly rates paid during the pay period together with the number of hours worked at each rate of pay.

d. Newhall Memorial’s Alleged Failure to Pay Proper Wages as a Re- . suit of its Rounding Policy

Finally, Vasserman contends that New-hall Memorial employs a rounding policy in calculating employee wages that disproportionately and negatively impacts employees.. She asserts that the actual time worked by employees was usually rounded down so that employees were not paid for all time worked. Newhall Memorial purportedly implemented this rounding policy with intent to deceive employees and cause them to believe that they were being paid proper compensation for all hours worked.

2. The Putative Classes

Vasserman seeks to represent five putative classes of current and former Newhall Memorial employees:

Class 1: All hourly, non-exempt employees of Newhall Memorial who worked more than eight (8) hours in a day or more than forty (40) hours in a week from four (4) years before the filing of this action through the date of judgment and were not paid proper premium overtime and double time wages (“Pay Plan Class”);

Class 2: All hourly, non-exempt employees who worked for Newhall Memorial at some point from four (4) years before the filing of this action through the date of judgment, and who are no longer employed by Newhall Memorial (“Waiting Time Penalty Class”);

Class 3: All hourly, non-exempt employees who worked for Newhall Memorial from four (4) years before the filing of this action through the date of judgment who were subjected to Newhall Memorial’s meal period policies and practices (“Meal Break Class”);

Class U: All hourly, non-exempt employees who worked for Newhall Memorial from one (1) year before the filing of this action through the date of judgment who were provided a paystub, i.e., wage statement, by Newhall Memorial (“Pay Stub Class”); and

Class 5: All hourly, non-exempt employees who worked for Newhall Memorial from four (4) years before the filing of this action through the date of judgment, who were subject to Newhall Memorial’s rounding policy and practice (“Rounding Class”).

3. Vasserman’s Claims

On behalf of these classes, Vasserman pleads claims for (1) violation of California’s Unfair Competition Law (“UCL”), California Business and Professions Code § 17200 et seq.; (2) failure to provide overtime compensation in violation of California Labor Code §§ 204, 510, 1194, 1198; (3) waiting time penalties in violation of California Labor Code § 200 et seq.; (4) failure to provide itemized wage statements in violation of California Labor Code § 226; (5) failure to provide meal breaks in violation of California Labor Code § 226.7; (6) a private attorney general (“PAGA”) action under California Labor Code §§ 2698-99 for violations of the Labor Code; and (7) failure to pay all wages due to illegal rounding in violation of California Labor Code §§ 204, 510, 1197, 1198.

B. The Parties’ Requests for Judicial Notice

Vasserman requests that the court take judicial notice of two documents in eonnection with her motion to remand the action to Los Angeles Superior Court, while Newhall Memorial requests that the court take judicial notice of four documents in deciding its motion to dismiss Vasserman’s, complaint. The parties’ respective requests are unopposed.

A court can consider evidence in deciding a remand motion, including document's that can be judicially noticed. See, e.g., Ryti v. State Farm General Ins. Co., No. C 12-01709 JW, 2012 WL 2339718, *1 n. 4 (N.D.Cal. May 30, 2012) (granting plaintiffs’ request for judicial notice and considering documents that were proper subjects of judicial notice in deciding a remand motion); Vasquez v. Arvato Digital Services, LLC, No. CV 11-02836 RSWL (AJWx), 2011 WL 2560261, *2 (C.D.Cal. June 27, 2011) (considering documents that were proper subjects of judicial notice in deciding a remand motion); Aniel v. TD Serv. Co., No. C 10-05323 WHA, 2011 WL 109550, *3 (N.D.Cal. Jan. 13, 2011) (taking judicial notice of court orders and the judgment in a prior case as public records in deciding a motion to remand); Deutsche Bank Nat. Trust Co. v. Sitanggang, No. L09CV01835 AWL DLB, 2010 WL 144439, *1 n. 1 (E.D.Cal. Jan. 11, 2010) (taking judicial notice of documents proffered by plaintiff in deciding a motion to remand); Flower v. Wachovia Mortg. FSB, No. C 09-343 JF (HRL), 2009 WL 975811, *2-3 (N.D.Cal. Apr. 10, 2009) (court took judicial notice of Office of Thrift Supervision documents regarding the corporate structure of Wells Fargo and Wachovia to determine the citizenship of the defendant corporation for purposes of a remand motion).

In deciding a Rule 12(b)(6) motion, however, courts generally look only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). Although a court must normally convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it “considers evidence outside the pleadings ... [it] may consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir.2003). See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (a court may consider “other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice”); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994) (noting that a court may consider a document whose contents are alleged in a complaint, so long as no party disputes its authenticity), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002).

Thus, in deciding Vasserman’s motion to remand and Newhall Memorial’s motion to dismiss, the court can consider material that can be judicially noticed under Rule 201 of the Federal Rules of Evidence. Fed.R.Evjd. 201. Under Rule 201, the court can take judicial notice of “[ojfficial acts of legislative, executive, and judicial departments of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably undis-putable accuracy.”

The parties request that the court take notice of four court orders: (1) an order by Judge Philip S. Gutierrez remanding Marincovich v. Aramark Uniform & Career Apparel, Inc., No. CV 12-10245 PSG (JEMx), filed March 11, 2013; (2) an order Judge Jesus G. Bernal remanding Bart v. Parkview Community Hospital Medical Center, No. EDCV 14-1614 JGB (DTBx), filed September 18, 2014; (3) the opinion of the Ninth Circuit Court of Appeals in Landers v. Quality Communications, No. 12-15890, dated November 12, 2014; and (4) an order by Judge Beverly Reid O’Connell in Maiava v. Brinderson Constructors, Inc., No. 2:14-CV-05514 BRO (AJWx), filed November 12, 2014.

“Under Federal Rule of Evidence 201, the [c]ourt may take judicial notice of matters of public record if the facts are not ‘subject to a reasonable dispute.’ ” Olds v. Metlife Home Loans, No. SACV 12-55 JVS (RNBx), 2012 WL 10420298, *1 n. 1 (C.D.Cal. Mar. 19, 2012) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001)). Court orders and filings are proper subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th Cir.2007) (noting that a court “may, take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.2006) (takipg judicial notice of pleadings, memoranda, and other court filings); Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290 n. 1 (9th Cir.1996) (court may take judicial notice of pleadings and court orders in related proceedings); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992) (a court may take judicial notice “of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue”); U.S., ex rel. Modglin v. DJO Global Inc., F.Supp.2d, 2014 WL 4783575, *11 (C.D.Cal. Sept. 2, 2014) (“As respects court orders and filings in other FCA cases, these documents, too, are the proper subject of judicial notice” (citations omitted)); Farahani v. Floria, No. 12-CV-04637 LHK, 2013 WL 1703384, *1 n. 1 (N.D.Cal. Apr. 19, 2013) (“The remaining documents submitted for judicial notice are all documents filed in previous and concurrent lawsuits, which are similarly suitable’ for judicial notice under Fed.R.Evid. 201(b)”), Because each of these documents is a proper subject of judicial notice, the court grants the parties’ requests, and will consider them in deciding the pending motions.

Newhall Memorial also asks that the court take judicial notice of the operative complaint in this action. It is well established that a court can take judicial notice of its own files and records under Rule 201 of the Federal Rules of Evidence. Molus v. Swan, No. 05cv452-MMA (WMe), 2009 WL 160937, *2 (S.D.Cal. Jan. 22, 2009) (“Courts also may take judicial notice of their own records,” citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir.1986)); see also NovelPoster v. Javitch Canfield Group, No. 13-CV-05186-WHO, 2014 WL 5594969, *4, n. 7 (N.D.Cal. Nov. 3, 2014) (“In conjunction with the motion, defendants requested judicial notice of various documents, including NovelPoster’s ex parte application for a temporary restraining order in this case and this Court’s subsequent order.... Defendants’ request for judicial notice of the TRO application and order is GRANTED”); In re Linda Vista Cinemas, L.L.C., 442 B.R. 724, 740 n. 7 (Bankr.D.Ariz.2010) (stating that “[t]he court takes judicial notice of its own records,” specifically, a declaration attached to the opposition to a motion for preliminary injunction, citing United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980)). Accordingly, the court grants Newhall Memorial’s request for judicial notice of the complaint in this action, “although [Newhall Memorial] [is] advised for future reference that [it] need not seek judicial notice of documents previously filed in the same case. An accurate citation will suffice.” NovelPoster, 2014 WL 5594969 at *4 n. 7.

Newhall Memorial also requests that the court take judicial notice of Wage Order No. 52001 of the California Industrial Welfare Commission (“IWC”). Industrial Wage Orders of the California IWC can be judicially noticed. See Stitt v. San Francisco Mun. Transp. Agency, No. 12-CV-03704 YGR, 2013 WL 121259, *3 (N.D.Cal. Jan. 8, 2013) (“Here, judicial notice of Wage Order 9, the SFMW O, and the San Francisco charter is appropriate as these documents are matters of public record”); Mendoza v. Home Depot, U.S.A. Inc., No. CV 09-05843 SJO (JCx), 2010 WL 424679, *3 (C.D.Cal. Jan. 21, 2010) (“Defendant requests that the Court take judicial notice of ... [IWC] Wage Order 4-2001.... Industrial Wage Orders are [ ] properly subject to judicial notice pursuant to City of Sausalito v. O’Neill, 386 F.3d 1186, 1224 n. 2 (9th Cir.2004).... Accordingly, the Court takes judicial notice of the [ ] above-mentioned document[ ]”); Veliz v. Cintas Corp., No. C 03-1180 RS, 2009 WL 1107702, *3 n. 3 (N.D.Cal. Apr. 23, 2009) (taking judicial notice, inter alia, of an IWC wage order); see also Sausalito v. O’Neill, 386 F.3d 1186, 1224 n. 2 (9th Cir.2004) (“We may take judicial notice of a record of a state agency not subject to reasonable dispute,” citing Mack v. S. Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.1986) (court may take judicial notice of records and reports of state administrative bodies), overruled on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991)); Cardenas v. McLane FoodServices, Inc., 796 F.Supp.2d 1246, 1251 n. 1 (C.D.Cal.2011) (taking judicial notice of an opinion letter of the California Department of Labor Standards Enforcement). Accordingly, the court grants Newhall Memorial’s request and takes judicial notice of IWC Wage Order 5-2001.

II. DISCUSSION

A. Vasserman’s Evidentiary Objections

1. Declaration of Mark Puleo in Support of Newhall Memorial’s Notice of Removal

Before addressing the merits of the parties’ respective motions, the court first considers various evidentiary objections Vasserman asserts to declarations submitted by Newhall Memorial in support of its notice of removal and in opposition to Vas-serman’s motion to remand. Vasserman first objects to consideration of certain portions of the declaration of Mark Puleo, Vice President and Chief Human Resources Officer at Newhall Memorial. Her objections concern Paragraphs 3, 4, 5, 6, and 7 of the declaration.

Vasserman objects to these paragraphs on the grounds that they (1) constitute inadmissible hearsay under Rules 801 and 802 of the Federal Rules of Evidence; (2) have not been authenticated under Rule 901; (3) constitute expert opinion by a person not qualified to offer expert testimony under Rules 701, 702, and 704; (4) are unduly prejudicial under Rule 403; (5) are irrelevant under Rule 401; and (6) lack foundation under Rule 602. None of these objections has merit.

Puleo states, under penalty of perjury, that the statements in the declaration are based on personal knowledge he has gained as Newhall Memorial’s Vice President and Chief Human Resources Officer; this provides adequate foundation for the statements. See Fed.R.Evid. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony”); Barthelemy v. Air Line Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir.1990) (concluding that a CEO’s personal knowledge of various corporate activities could be presumed). Indeed, Puleo explains that many of his statements are based on his review of Newhall Memorial records that are available to him as Vice President and Chief Human Resources Officer. Moreover, Puleo’s statements about the unions representing Newhall Memorial employees and the collective bargaining agreements to which they were a party is the type of information that would reasonably be known to Puleo as Chief Human Resources Officer. See, e.g., In re Kaypro, 218 F.3d 1070, 1075 (9th Cir.2000) (“Gries-bach’s five-year tenure as Arrow’s credit manager lends support to his claim of ‘personal knowledge’ of industry practice”); Barthelemy, 897 F.2d at 1018; Chavez v. Amerigas Propane, Inc., No. CV 12-07524 MMM (Ex), 2013 WL 25882, *1 n. 5 (C.D.Cal. Jan. 2, 2013) (overruling objections to the declaration of Amerigas’ Senior Counsel, who stated that Amerigas’ headquarters were in King of Prussia, Pennsylvania, because, “as senior counsel for Amerigas, it is reasonable to believe that [the declarant] knows the location of the corporation’s headquarters”). Accordingly, the court overrules Vasserman’s foundation objection to Puleo’s declaration.

The statements in Puleo’s declaration are, moreover, relevant because they bear directly on whether the court has subject matter jurisdiction. See Fed. R.Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action”). Pu-leo’s declaration makes it more likely that Vasserman’s claims are preempted and/or that the requirements-for removal under the Class Action. Fairness Act are satisfied. Vasserman’s relevance objection is thus overruled.

Even if evidence is relevant, of course, the court may exclude it under Rule 403 “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Undue prejudice means an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Fed.R.Evid. 403, Advisory Committee Notes, 1972 Proposed Rules. See also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The statements to which Vas-serman objects are not unduly prejudicial as that term is used in Rule 403. Vasser-man does not explain how she will be unfairly prejudiced by Puleo’s statements, and the court can discern no unfair prejudice that court result. See Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir.1977) (“ ‘[Ujnfair prejudice’ as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn’t material. The prejudice must be ‘unfair’ ”), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). Even if there were some unfair prejudice, moreover, it would not substantially outweigh the probative value of the statements. The court therefore overrules Vasserman’s Rule 403 objection to Puleo’s declaration.

Similarly unavailing are Vasserman’s objections under Rules 701, 702, 704, 801, 802, and 901 of the Federal Rules of Evidence. Puleo’s statements do not constitute expert opinion. Rule 702 of the Federal Rules of Evidence governs the admission of expert testimony. Under Rule 702,

“[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702.

See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (“[Rule 702] consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion”); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) (“There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy” (citations omitted)).

In contrast, Rule 701 permits lay opinion testimony that is “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. Rule 701’s requirement that opinion testimony be based on a witness’s perception derives from Rule 602. That rule states-in pertinent part that “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.” Fed.R.Evid. 602.

Puleo’s statements are based on personal knowledge; they are not the product of “scientific, technical, or other specialized knowledge.” That Puleo knows the information as a result of his work for Newhall Memorial does not convert factual observations into expert testimony. Courts routinely permit witnesses to offer lay opinion testimony concerning matters they learn or experience they gain as a result of their employment. See In re Google AdWords Litigation, No. 5:08-CV-3369 EJD, 2012 WL 28068, *5 (N.D.Cal. Jan. 5, 2012) (“Plaintiffs contend, however, that Dr. Varian’s declaration also contains opinions that should be stricken as expert testimony in violation of Rule 26 disclosures. According to Plaintiffs, Dr. Varian should not be permitted to opine, among other things, that there is ‘no overall or set price that could be applied uniformly across hundreds of thousands of advertisers in the class.’... Defendant responds that the primary purpose of Varian’s Declaration is to explain to the Court how advertisers are charged for the advertisements placed through Google AdWords, the subject matter of this litigation. Additionally, Defendants argue that Dr. Var-ian’s personal knowledge and experience permits him to make certain assertions as a lay witness under Rule 701. The Court will admit Dr. Varian’s testimony regarding his knowledge of how the AdWords system works and his experience applying economic modeling to study the AdWords System. As Google’s Chief Economist, Dr. Varían is qualified to explain, as a lay witness, what Google’s AdWords system does, how it behaves, and what it does when certain variables are changed. Here, just because the underlying facts and data are technical does not transform the information into ‘expert testimony’ when those facts are within the personal knowledge and experience of the company’s employee. Dr. Varían may offer lay witness opinions' regarding Google’s business, so long as those opinions are based on his own personal, particularized knowledge and experience relating to his employment at Google,” citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1175-76 (3d Cir.1993); Minority Television Project, Inc. v. FCC, 649 F.Supp.2d 1025, 1032 (N.D.Cal.2009); Hynix Semiconductor, Inc. v. Rambus, Inc., Nos. CV-00-20905 RMW, C-05-00334 RMW, C-06-00244, 2008 WL 504098, *5 (N.D.Cal. Feb. 19, 2008)); see also United States v. Munoz-Franco, 487 F.3d 25, 35 (1st Cir.2007) (“Under Rule 701, courts have allowed lay witnesses to express opinions about a business ‘based on the witness’s own perceptions and knowledge and participation in the day-to-day affairs of [the] business,’ ” citing United States v. Polishan, 336 F.3d 234, 242 (3d Cir.2003)).

Moreover, although Puleo provides calculations concerning the number of putative class members, the approximate number of paychecks they received, and their average hourly rate of pay, none of this information concerns subject matter “beyond the common knowledge of the average layman,” such that Puleo would have to qualify as an expert. Vasserman does not explain why simple mathematical calculations constitute expert testimony. Although she contends that Puleo must be “an expert qualified to provide an opinion as to ... who constitutes [a] class member!],” the court does not agree. As discussed infra, the identity of putative class members can be determined based on the class definitions alleged in the complaint. Vasserman also argues that Puleo “has not established himself as an expert to testify as to the grievance and arbitration provisions [of the collective bargaining agreements (“CBAs”) ] or whether the grievance and arbitration provisions cover the alleged Labor Code violations, as asserted in Plaintiffs Complaint.” Contrary to Vasserman’s assertion, Puleo does not testify “as to” the substance of the grievance and arbitration provisions or whether they “cover the alleged Labor Code violations”; he merely notes that the agreements contain such provisions. A declarant need not be an expert witness to offer this type of testimony. The court therefore concludes that Puleo does not offer expert testimony and overrules Vas-serman’s objections under Rules 701, 702, and 704.

Vasserman objects finally that the challenged paragraphs of Puleo’s declaration contain inadmissible hearsay and lack authentication. She offers no substantive argument supporting the objections and the court finds no basis for them. Puleo is not recounting an out-of-court statement to prove the truth of the matter asserted; rather, he testifies based on personal knowledge of Vasserman’s personnel files. Cf. Fed.R.Evid. 801(c) (“ ‘Hearsay’ means a statement that: (1). the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement”). Moreover, it is unclear what portions of Puleo’s statements Vasserman contends must be authenticated. Accordingly the court overrules Vasserman’s authentication objection. See, e.g., Burch v. Regents of University of California, 433 F.Supp.2d 1110, 1123-24 (E.D.Cal.2006) (“Because defendants only generally raise this objection without specifying which of the numerous exhibits ... are actually not self authenticating, the court overrules this objection. The burden is on defendants to state their objections with specificity. Cf. 10B Wright, Miller & Kane, Fedekal Practice and Procedure § 2738 (‘It follows that a motion to strike should specify the objectionable portions of the affidavit and the grounds for each objection. A motion asserting only a general challenge to an affidavit will be effective.’) Moreover, because defendants do not actually dispute the authenticity of these documents, the court is confident plaintiff would be able to authenticate them at trial” (emphasis added)).

For the reasons stated, the court overrules each of Vasserman’s objections to Puleo’s declaration and will consider the declaration in its entirety in ruling on the motion to remand.

2. Declarations of Angela Watkins and Rolando Bergado in Support of Newhall Memorial’s Notice of Removal

Vasserman also objects to portions of the declarations of Angela Watkins and Rolando Bergado filed in support of Newhall Memorial’s notice of removal. Specifically, she objects to Paragraphs 3, 4, and 5 of Watkins’ declaration. She objects to the same paragraphs of Berga-do’s declaration. Vasserman asserts that the challenged statements are “unfairly prejudicial as [defendant has not established that [Watkins or Bergado] is a ‘class member’ per 28 U.S.C. § 1332(d)(1)(D) .... within the definition of the proposed class in [plaintiffs complaint.” On this basis, she contends that their citizenship and residence are “irrelevant in determining CAFA jurisdiction.”

As discussed infra, Vasserman’s assertion that neither Watkins nor Berga-do is a putative class member as defined in the complaint is unavailing; their statements are thus relevant because they make it more probable that minimal diversity exists between Newhall Memorial and the putative class members. See Fed. R.Evid. 401 (evidence is relevant if it has “any tendency to make the existence of any fact ... more or less likely that it would be without the evidence”). The court thus overrules Vasserman’s relevance objection to the Watkins and Berga-do declarations. It similarly overrules her objection under Rule 403. Vasserman does not explain how she will be unfairly prejudiced by consideration of the Watkins and Bergado declarations; rather, it appears the only form of “prejudice” she will suffer is that the declarations make it less likely her remand motion will be granted. As noted, the fact that evidence is adverse to a party’s position does not support its exclusion under Rule 403; rather, the evidence must result in “unfair prejudice.” See Old Chief, 519 U.S. at 180, 117 S.Ct. 644 (unfair prejudice means an “undue tendency to suggest decision .on an improper basis, commonly, though not necessarily, an emotional one,” quoting Fed.R.Evid. 403, Advisory Committee Notes, 1972 Proposed Rules). See also United States v. Munoz, 36 F.3d 1229, 1233 (1st Cir.1994) (“The damage done to the defense is not a basis for exclusion; the question under Rule 403 is ‘one of “unfair” prejudice—not of prejudice alone’ ”); Dollar, 561 F.2d at 618. Consequently, the court overrules Vasserman’s Rule 403 objection to Watkins’ and Bergado’s declarations.

B. Vasserman’s Motion to Remand

1. Legal Standard Governing Removal Jurisdiction

The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979). The removal statute, 28 U.S.C. § 1441, allows defendants to remove when a case originally filed in state court presents a federal question or is between citizens of different states and involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b); see also 28 U.S.C. §§ 1331, 1332(a). A case presents a “federal question” if a claim “‘aris[es] under the Constitution, laws, or treaties of the United States.’ ” Sullivan v. First Affiliated Securities, Inc., 813 F.2d 1368, 1371 (9th Cir.1987) (quoting 28 U.S.C. § 1331). Only state court actions that could originally have been filed in federal court may be removed. 28 U.S.C. § 1441(a); see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir.1988). Whether removal jurisdiction exists must be determined by reference to the “well-pleaded complaint.” Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). The well-pleaded complaint rule makes plaintiff the “master of the claim.” Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425. Thus, where plaintiff can state claims under both federal and state law, she can prevent removal by ignoring the federal claim and alleging only state law claims. Rains v. Criterion Systems, Inc., 80 F.3d 339, 344 (9th Cir.1996).

There is an exception to the “well pleaded complaint” rule, however. Under the “artful pleading” doctrine, a plaintiff cannot defeat removal of a federal claim by disguising or pleading it artfully as a state law cause of action. If the claim arises under federal law, the federal court will recharacterize it and uphold removal. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398 n. 2, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Schroeder v. Trans World Airlines, Inc., 702 F.2d 189, 191 (9th Cir.1983). The “artful pleading” doctrine applies to state claims that are completely preempted by federal law. See Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 (“Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law”); ARCO Environmental Remediation, L.L.C. v. Department of Health & Environmental Quality of Montana, 213 F.3d 1108, 1114 (9th Cir.2000) (“A state-created cause of action can be deemed to arise under federal law ... where federal law completely preempts state law”).

To support a finding of complete preemption, the preemptive force of the federal statute at issue must be “extraordinary.” See Metropolitan Life Ins. Co., 481 U.S. at 65, 107 S.Ct. 1542; Holman v. Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir.1993) (“The [complete preemption] doctrine applies in select cases where the preemptive force of federal law is so ‘extraordinary’ that it converts state common law claims into claims arising under federal law for purposes of jurisdiction,” citing Caterpillar, 482 U.S. at 386, 107 S.Ct. 2425). For this reason, the complete preemption doctrine is narrowly construed. See Holman, 994 F.2d at 668 (“The [complete preemption] doctrine does not have wide applicability; it is a narrow exception to the ‘well-pleaded complaint rule’ ”); Gatton v. T-Mobile USA, Inc., No. SACV 03-130 DOC, 2003 WL 21530185, *5 (C.D.Cal. Apr. 18, 2003) (“The complete preemption doctrine is, however, extremely narrow,” citing TPS Utilicom Services, Inc. v. AT & T Corp., 223 F.Supp.2d 1089, 1097 (C.D.Cal.2002)). “[O]nly three areas have been deemed areas of complete preemption by the United States -Supreme Court: (1) claims under the Labor Management Relations Act [LMRA]; (2) claims under the Employment Retirement and Insurance Security Act (ERISA); and (3) certain Indian land grant rights.” Gattony 2003 WL 21530185 at *5; see also Robinson v. Michigan Consolidated Gas Co., Inc., 918 F.2d 579, 585 (6th Cir.1990) (“complete preemption ... is extremely limited, existing only where a claim is preempted by [the LMRA]; where a state law claim alleges a present right to possession of Indian tribal lands; and where state tort or contract claims are preempted by [ERISA]” (internal citations omitted)).

2. Whether the Court Has Federal Question Jurisdiction

a. Legal Standard Governing § 301 Preemption

Section 301(a) of the LMRA gives federal courts exclusive jurisdiction to hear “[s]uits for violation of contracts between an employer and a labor organization.” 29 U.S.C. § 185(a). See Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. 2841 (“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”); see also Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 (“Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement,’ ” quoting Electrical Workers.v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). Section 301 “mandate[s] resort to federal rules of law in order to ensure uniform interpretation of collective:bargaining agreements, and thus to promote the peaceable, consistent resolution of labor-management disputes.” Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 404 n. 3, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).

To further the goal of uniform interpretation of labor contracts, the preemptive effect of § 301 has been extended beyond suits that allege the violation of a collective bargaining agreement. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (“The interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law also require that the meaning given a contract phrase or term be subject to uniform federal interpretation”). Thus, a state law claim will be preempted if it is so “inextricably intertwined” with the terms of a labor contract that its resolution will require judicial interpretation of those terms. Id. at 213, 105 S.Ct. 1904 (holding that a claim for breach of the duty of good faith, and fair dealing was preempted by § 301 because “good faith” and “fair dealing” had to be assessed with reference to the contractual obligations of the parties).

Despite the broad preemptive effect of § 301, a claim that seeks to vindicate “nonnegotiable state-law rights ... independent of any right established by contract” is not within its scope. Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct. 1904; see also Livadas v. Bradshaw, 512 U.S. 107, 123-24, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (“[Section] 301 cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law.... [I]t is the legal character of a claim, as ‘independent’ of rights under the collective-bargaining agreement ... that decides whether a state cause of action may go forward” (citations omitted)). As a result, if a state law cannot be waived or modified by private contract, and if the rights it creates can be enforced without resort to the particular terms, express or implied, of a labor contract, § 301 does not preempt the claim for violation of the law. See Miller v. AT & T Network Systems, 850 F.2d 543, 546 (9th Cir.1988). “If the claim is plainly based on state law, § 301 preemption is not mandated simply because the defendant refers to the CBA in mounting a defense.” Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 691 (9th Cir.2001) (en banc), cert. denied 534 U.S. 1078, 122 S.Ct. 806, 151 L.Ed.2d 692 (2002).

Nor can a defendant invoke preemption merely by alleging a “hypothetical connection between the claim and the terms of the CBA,” or a “creative linkage” between the subject matter of the suit and the wording of the CBA. Id. at 691-92. To prevail, “the proffered interpretation argument must reach a reasonable level of credibility.” Id. at 692. A preemption argument is not credible “simply because the court may have to consult the CBA to evaluate [a plaintiffs claim]; [similarly,] ‘looking] to’ the CBA merely to discern that none of its terms is reasonably in dispute does not require preemption.” Id. (quoting Livadas, 512 U.S. at 125, 114 S.Ct. 2068). In Cramer, the Ninth Circuit clarified the scope of the LMRA’s preemptive effect:

“To the extent our prior cases held or implied that preemption was proper because of the mere possibility that the subject matter of the claim was a proper subject of the collective bargaining process, whether or not specifically discussed in the CBA, we today hold such statements to be an incorrect articulation of § 301 preemption principles. A state law claim is not preempted under § 301 unless it necessarily requires the court to interpret an existing provision of a CBA that can reasonably be said to be relevant to the resolution of the dispute.” Id. at 693.

See also Humble v. Boeing Co., 305 F.3d 1004, 1007-08 (9th Cir.2002) (recognizing that Cramer “revised [the] framework for analyzing § 301 preemption and synthesized the considerations involved”).

The Ninth Circuit has articulated a two-part test to determine whether a cause of action is preempted by the LMRA. Burnside v. Kiewit Pacific Corp., 491 F.3d 1053, 1059 (9th Cir.2007). First, the court must determine “whether the asserted cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA. If the right exists solely as a result of the CBA, then the claim is preempted, and ... analysis ends.... If however, the right exists independently of the CBA, [the court] must still consider whether it is nevertheless ‘substantially dependent on analysis of a collective-bargaining agreement.’ If such dependence exists, then the claim is preempted by section 301; if not, then the claim can proceed under state law.” Id. at 1059-60 (citations omitted),

b. Whether Vasserman’s Claims are Preempted

Vasserman alleges state law claims for unfair business practices under California Business and Professions Code § 17200 et seq.; failure to pay overtime compensation in violation of California Labor Code §§ 204, 510, 1194, 1198; waiting time penalties under California Labor Code § 200 et seq.; failure to provide accurate itemized wage statements in violation of California Labor Code § 226; failure to provide meal breaks in violation of California Labor Code § 226.7; civil penalties under PAGA, California Labor Code §§ 2698-99; and failure to pay all wages due to illegal rounding in violation of California Labor Code §§ 510(a) and 1194, and IWC Wage Order 5-2001. The court considers whether these claims are preempted by § 301 of the LMRA seriatim below.

(1) Whether Vasserman’s Overtime Claim is Preempted

Vasserman contends that her second claim for failure to provide overtime compensation in violation of California Labor Code §§ 204, 510, 1194, 1198 is “based on and conferred by substantive non-waivable rights under state law — specifically, the California Labor Code — and not by rights or duties under [Newhall Memorial’s] CBAs.” The claim rests on allegations that Newhall Memorial had a policy of failing to pay all compensable time and overtime due, including, at times, failing to pay proper straight time and overtime pay for hours worked by Vasserman and putative class members. Newhall Memorial counters that Labor Code § 510 “does not apply to [Vasserman’s] overtime claims” because it satisfies a statutory exemption set forth in Labor Code § 514. Because § 510 does not apply, Newhall Memorial asserts that Vasserman’s overtime rights can “only arise from interpretation of the CBA,” and thus that the under Burnside, the claim is preempted under § 301 of the LMRA.

The CBAs suggest that Vasserman’s claim may be based on a statute that does not apply. Labor Code § 514 exempts from §§ 510 and 511 employees covered by CBAs if certain conditions are met:

“Section 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.

Section 514 is an affirmative defense that must be pled and proved by Newhall Memorial. See Mireles v. Paragon Systems, Inc., No. 3:13-CV-00122-L-BGS, 2013 WL 3450090, *3-4 (S.D.Cal. July 9, 2013) (denying a motion to strike a § 514 affirmative defense to plaintiffs overtime claims); see also Araquistain v. Pacific Gas & Electric Company, 229 Cal.App.4th 227, 231, 176 Cal.Rptr.3d 620 (2014) (recognizing that California Labor Code §§ 512(e)-(g), the statutory exemptions to meal period violations, are affirmative defenses to a claim for violation of § 512(a)). Vasserman asserts it is premature to determine whether § 514 applies because Newhall Memorial has not yet pled the defense. The court need not finally decide the issue to determine jurisdiction for two reasons. First, the fact that the § 514 exemption may apply does not alter the substance of Vasserman’s claim. If it is ultimately determined that § 514 applies, this will simply mean that Vasserman has alleged a claim under a statute she cannot invoke, and under which she is unable to recover. Stated differently, although Vasserman’s claim may ultimately fail, the court is unable to conclude that its resolution is substantially dependent on analysis of the CBAs when the supporting allegations focus only on state law. Indeed, Vasserman specifically and repeatedly pleads violations of state law, not a violation of the CBAs or right they provide.

Second, because, as noted, Newhall Memorial’s reliance on § 514 is essentially a defense to Vasserman’s overtime claim, it does not give rise to § 301 preemption. See Humble, 305 F.3d at 1011 (“Boeing argues that when it offers a non-discriminatory justification for its conduct by relying on authorizing CBA provisions, that suffices to trigger preemption of Humble’s reasonable accommodation claim. This argument is unavailing after Cramer, which held that reliance on CBA provisions to defend against an independent state law claim does not trigger § 301 preemption”). Accordingly, the court finds that Vasserman’s second claim is not preempted.

In so holding, the court reaches the same conclusion as several other courts in this district, each of which has recognized that “reliance on the CBA as an aspect of a defense is not enough to ‘inject[ ] a federal question into an action that asserts what is plainly a state-law claim.’ ” Placencia v. Amcor Packaging Distribution, Inc., No. SACV 14-0379 AG (JPRx), 2014 WL 2445957, *2 (C.D.Cal. May 12, 2014) (citing Caterpillar, 482 U.S. at 399, 107 S.Ct. 2425). These courts have rejected the arguments Newhall Memorial makes here—i.e., that an overtime claim arises under the CBA, rather than state law, when the defendant asserts an affirmative defense under § 514.

In Placencia, 2014 WL 2445957 at *2-3, for example, Judge Andrew Guilford remanded a wage and hour action to state court; he concluded that Placencia’s overtime claim did not arise under the CBA despite the fact that Amcor had asserted a § 514 defense. Amcor argued that its employees were “covered by a valid collective bargaining agreement,” and that it was thus “exempt from California’s state overtime laws” under § 514, leaving “[plaintiffs only right to overtime one that arises from the CBA.” Id. at *2. Judge Guilford noted that “ ‘[Section] 301 preemption is not mandated simply because the defendant refers to the CBA in mounting a defense.’ ” Id. (citing Caterpillar, 482 U.S. at 398-99, 107 S.Ct. 2425; Cramer, 255 F.3d at 691). Specifically, he reasoned that “whether [plaintiff’s claim fails requires interpreting state law, not the CBA.” As a consequence, Judge Guilford concluded that Amcor’s defense to Placen-cia’s § 510 overtime claim was “not sufficient grounds for removal.” Id. at *3 (“Plaintiff, as the master of his complaint, has chosen to plead his overtime claim not under the CBA, but rather under California law. Amcor essentially argues Plaintiff can’t plead such a claim. That may be proper grounds for demurrer, but it is not sufficient grounds for removal here”).

Similarly, in Bart v. Parkview Community Hospital Medical Center, No. EDCV 14-01614 JGB (DTBx) (C.D.Cal. Sept. 18, 2014), Judge Bernal rejected a contention that Parkview’s defensive reliance on the statutory exemption set forth in § 514 meant that Bart’s overtime claim for violation of the Labor Code arose under the CBA. Judge Bernal noted that each of Bart’s claims clearly arose under state law; he found no preemption under the first step of the Burnside analysis because “[p]laintiff allege[d] only state law claims and [did] not refer to CBAs anywhere in the Ffirst] A[mended] Cfomplaint].” Id. at 4. He also rejected Parkview’s argument — nearly identical to that advanced by Newhall Memorial here — that, because the governing CBAs allegedly provided premium pay and satisfied § 514, the class’s right to recovery arose from the CBA. Id. at 5.

The court finds the reasoning of Judges Guilford and Bernal instructive. As the Ninth Circuit has recognized, “[i]t is ‘settled law that a case may not be removed to federal court on the basis of a federal defense, including a defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.’ ” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir.2000) (quoting Franchise Tax Bd., 463 U.S. at 14, 103 S.Ct. 2841). Newhall Memorial, however, seeks to remove precisely on this basis. Even if Newhall Memorial’s § 514 defense ultimately prevails, Vasserman’s claim is premised on state law rights afforded by § 510, not on rights created by the CBA. Humble, 305 F.3d at 1008 (“[T]he plaintiffs claim is the touchstone for the preemption analysis, and ‘the need to interpret the CBA must inhere in the nature of plaintiffs claim’ to trigger preemption,” citing Cramer, 255 F.3d 683). See, e.g., Morales v. Amcor Packaging (USA), Inc., No. 2:14-CV-03612-ODW (AJW), 2014 WL 2931174, *4 (C.D.Cal. June 30, 2014) (“Here, the issue is whether Amcor provided meal and rest periods in accordance with California wage-and-hour law. As a defense, Amcor may submit the CBA and argue that Morales and the rest of the class agreed to forgo off-duty meal and rest breaks. However, a valid defense will not support removal to district court; it simply means that Amcor prevails in state court”); Placencia, 2014 WL 2445957 at *2 (“Amcor argues [that because] ‘Plaintiffs only right to overtime is the one that arises from the CBA,’ Plaintiffs claim is preempted, and this Court has jurisdiction. But that’s not true. If Plaintiffs overtime claim under California law fails, that doesn’t mean this Court has jurisdiction, it means Amcor wins. Determining whether Plaintiffs claim fails requires interpreting state law, not the CBA. Gregory v. SCIE, LLC, 317 F.3d 1050, 1053 (9th Cir.2003). And ‘[Section] 301 preemption is not mandated simply because the defendant refers to the CBA in mounting a defense.’ Cramer, 255 F.3d at 691; Caterpillar, 482 U.S. at 398-99, 107 S.Ct. 2425”).

The Ninth Circuit’s holding in Firestone v. Southern'California Gas Company, 219 F.3d 1063 (9th Cir.2000), is not to the contrary. Plaintiffs were meter readers, whose unions negotiated “flat sums for completing meter reading routes of assigned lengths.” Id. at 1065. Meter readers who worked more than eight hours in a day “received an adjustment to the flat sum normally paid.” Id. The agreement set forth a formula for determining the number of overtime hours; defendant, however, calculated overtime pay a different way. Id. at 1065-66. “The district court held that one could not determine whether plaintiffs were receiving a ‘premium wage rate’ for overtime under the collective bargaining agreement — making them- exempt from California overtime laws — without interpreting that agreement to determine, inter alia, what the regular rate was.” Id. at 1066. The Ninth Circuit agreed. It concluded that to resolve the parties’ dispute, the court would have to interpret the terms of the CBA to determine if plaintiffs were receiving a premium wage for overtime, and based on that interpretation, decide if California’s overtime exemption applied. Id. at 1067 (“Because the collective bargaining agreement must be' interpreted to determine whether the PPR document provides for premium wage rates for overtime work and, therefore, whether California’s overtime exemption provision applies, ... [plaintiffs’ state law claim is preempted by the LMRA”). Here, by contrast, no interpretation is required to determine the applicability of the exemption. The overtime provisions of the CBAs are straightforward and clear.

In this regard, the case is more like Gregory v. SCIE, LLC, 317 F.3d 1050 (9th Cir.2003), than it is like Firestone. In Gregory, the Ninth Circuit considered whether an unpaid overtime claim was preempted. Gregory worked six consecutive days on television and motion picture productions; he spent one day working on one production and five days working on another. Id. at 1051. Gregory alleged that SCIE had violated the Labor Code by failing to pay overtime for hours worked in excess of eight hours in one workday and forty hours in one workweek. Id. The court concluded that Gregory’s claim was based entirely on state law, and was not preempted. Id. at 1053. It explained: “While overtime is calculated in accordance with the terms of the CBA, this case involves no issue concerning the method of calculation. The issue here is not how overtime rates are calculated but whether the result of the calculation complies with California law, i.e., whether Gregory is paid at premium wage rates for” overtime work as required by § 510. Id. The court distinguished Firestone, stating that “the parties’ dispute is not over how premium wage rates are calculated under the CBA, but whether Gregory is paid premium pay for all the time for which he is entitled to premium pay under California law. This dispute does not require interpretation of the CBA.” Id. at 1054 n. 3.

Vasserman does not dispute the applicable wage rates that are provided in the CBA — instead, she argues that she was not paid overtime as required by California law. Although it is apparent that calculations will be required to resolve her overtime claims given the three overtime plans set forth in the CBAs, Newhall Memorial fails to show that this will require interpretation of the CBA, rather than reference to its undisputed terms. See Liradas, 512 U.S. at 124, 114 S.Ct. 2068 (“[W]hen the meaning of contract terms is not subject to dispute, the bare fact that a collective bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished”). Based on those undisputed terms, the court will have to assess “whether when overtime is paid under the CBA it is paid for all overtime hours worked, as required by California law.” Gregory, 317 F.3d at 1053.

Although Newhall Memorial asserts that several terms of the CBAs require interpretation to determine whether it is entitled to invoke the exemption, the court is not persuaded. As respects Article 18 of the CBAs, which provides paid education leave for employees, Newhall Memorial argues that “[i]n analyzing [plaintiff’s argument, the [c]ourt would necessarily have to interpret the terms of the ‘education leave’ policy to determine whether it rendered Labor Code § 514 ’ inapplicable, including whether the payments constitute ‘wages’ and what it means to pay ‘straight time.’ ” In so asserting, Newhall Memorial seizes on Vasserman’s contention in her motion that Article 18 does not expressly provide for wages earned by employees. As Newhall Memorial notes, however, the real question is whether “education leave” time constitutes “hours worked” under California law, and whether premium compensation must be calculated by including these hours in hours worked to determine if the CBAs satisfy the requirements for the statutory exemption. While such a determination may require reference to the CBAs, it will not require interpretation or analysis of their terms. As Newhall Memorial notes in its opposition, “hours worked” is defined by California law, not the CBAs. The court need only look at the education leave provision to determine whether, under state law, leave time constitutes compensable hours worked.

Similarly, the court is not convinced that the CBAs’ “on call/uncontrolled standby” provisions require interpretation to determine whether § 514 applies. Newhall Memorial asserts that it is necessary to interpret Article 14, Section I to determine whether the CBAs provide pay for straight time and premium pay for “all overtime hours worked,” as required to invoke § 514. Article 14, Section I provides:

“On Call (Uncontrolled Standby): Time spent by a Nurse placed on on-call status (Uncontrolled Standby) shall not be treated as time worked for that Nurse’s compensation, benefits, or any other purpose; provided, however, time spent by a Nurse on on-call status (Un- - controlled Standby) shall be paid to the Nurse at the hourly rate of $8.00. Any Nurse who is on on-call status and receives a call and request to perform substantive work which does not require the Nurse to come into the Hospital shall receive pay at the Nurse’s Base Hourly Rate for all time actually worked. De minimus time spent, defined as less than fifteen minutes in the aggregate, in response to a call