Rhonique Green v. BANK OF AMERICA, NA and BANK OF AMERICA CORPORATION

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RHONIQUE GREEN and OLIVIA
GIDDINGS, individually and on behalf of
all others similarly situated,
Plaintiffs - Appellants,
v.
BANK OF AMERICA, NA and BANK OF
AMERICA CORPORATION,
Defendants - Appellees.
No. 11-56365
D.C. No. 2:11-cv-04571-R-AGR
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted February 11, 2013 **
Pasadena, California
Before: KOZINSKI, Chief Judge, KLEINFELD and SILVERMAN, Circuit Judges.
Rhonique Green and Olivia Giddings appeal the district court’s order
FILED
FEB 13 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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granting Bank of America’s motion to dismiss. We have jurisdiction under 28 U.S.C.
§ 1291 and now reverse and remand.
Wage Order 7-2001 § 14 states: “All working employees shall be provided
with suitable seats when the nature of the work reasonably permits the use of seats.”
The district court erred when it assumed a requirement, not in the text of the Wage
Order, that employees must request seating before it is offered.
Plaintiffs alleged that the nature of their work reasonably permits the use of
seats. Because we are reviewing a dismissal for failure to state a claim, we assume
for purposes of decision that the factual allegations of the complaint are true. See
Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). We
intimate no view on whether such seating as may be provided to the employees is
"suitable." Nor do we intimate any view as to whether the nature of their work
"reasonably permits the use of seats." Those factual issues may be developed on
remand.
Likewise, Bank of America’s argument that any award under California’s
Private Attorneys General Act, Cal. Lab. Code § 2698 et seq., would be unjust is
premature. The reasonableness of any award depends on the facts of the case, which
have not yet been developed.
Finally, Green has alleged sufficient injury to satisfy Article III standing
requirements. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992)

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(noting that if “the plaintiff is himself an object of the action (or forgone action) at
issue . . . there is ordinarily little question that the action or inaction has caused him
injury”).
REVERSED and REMANDED.

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