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Ruling
PORFIRIO RODRIGUEZ VS TORANJ, INC., ET AL.
Jul 18, 2024 |Echo Dawn Ryan |24STCV00607
Case Number: 24STCV00607 Hearing Date: July 18, 2024 Dept: 26 07/18/2024 Dept. 26 Rolf M, Treu, Assigned Judge presiding Porfirio Rodriguez v. Toranj, Inc. et al. (24STCV00607) Counsel for Plaintiff/opposing party: Bardia A. Akhavan, Esq. Counsel for Defendant/moving party: Brett K. Wiseman, Esq/Madison Law, APC Motion to be relieved as Counsel (filed 04/09/2024) TENTATIVE RULING Counselor Wisemans Motions to be relieved as Counsel for Defendants Toranji Inc., Farbod Pirshirazi, Farinaz Pirshirazi, and Farshad Pirshirazi are GRANTED. I. BACKGROUND On January 09, 2024, Plaintiff Porfirio Rodriguez filed the operative Complaint against Defendants Toranji Inc., Farbod Pirshirazi, Farinaz Pirshirazi, and Farshad Pirshirazi alleging 1) age harassment; 2) age discrimination; 3) age retaliation; 4) race/national origin harassment; 5) race national origin discrimination; 6) race/national origin retaliation; 7) whistleblower violation; 8) failure to provide meal and rest periods; 9) failure to provide overtime wages; 10) failure to pay wages; 11) waiting time penalties; 12) failure to furnish compliant wage statements and maintain accurate pay records; 13) unfair business practices in violation of Business and Professions Code §§ 17200 et seq.; 14) wrongful termination and retaliation in violation of public policy; and 15) failure to provide personnel files. Defendant Farbod Pirshirazi filed his answer to the complaint on February 26, 2024. Defendants Toranji Inc., Farinaz Pirshirazi, and Farshad Pirshirazi jointly filed their Answer to the Complaint on March 06, 2024 On April 09, 2024, Counselor Brett K. Wiseman filed a Motion to be Relieved as Counsel, arguing: · Wiseman should be relieved as Counsel for Defendants Toranji Inc., Farbod Pirshirazi, Farinaz Pirshirazi, and Farshad Pirshirazi. · There has been an irreconcilable breakdown in the attorney-client relationship. Counsel further states that he is forbidden from disclosing further information under CRC Rule 3.1362(c). No opposition or reply has been filed. II. ANALYSIS A. Legal Standard for Motion to be Relieved as Counsel The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc. § 284, subd. (2).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).) In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either: (A) The service address is the current residence or business address of the client; or (B) The service address is the last known residence or business address of the client, and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. (Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).) B. Discussion As a preliminary matter, the Court notes that Counsel has filed four motions to be relieved as counsel for Defendants Toranji Inc., Farbod Pirshirazi, Farinaz Pirshirazi, and Farshad Pirshirazi. The Court has reviewed the moving papers, which all list the same reason for the motion. For the sake of efficiency the Court addresses all four motions below. On April 09, 2024, Counsel moved for the Court to relieve him as counsel of record for Defendants Toranji Inc., Farbod Pirshirazi, Farinaz Pirshirazi, and Farshad Pirshirazi.. (Mot. (MC-051).) Counsel properly filed a Notice of Motion and Motion (MC-051). Counsel also filed a Declaration in Support of the Motion (MC-052), citing irreconcilable breakdown in the attorney-client relationship. (MC-052, ¶ 2.) On Form MC-052, Counsel additionally indicates that he has served Defendant by mailing copies of the motion papers to Plaintiffs last known address. (MC-052 ¶ 3a(2).) Counsel also provided the Court with a Proposed Order, Form MC-053, which further includes Proof of Service indicating that both Plaintiff and Defendants have been served with the Notice, Motion, Declaration, and Order. (MC-053.) The Court finds that all procedural requirements have been satisfied and there is no showing that withdrawal would cause injustice or undue delay in the proceedings. III. DISPOSITION Accordingly, Counselor Wisemans Motions to be relieved as Counsel for Defendants Toranji Inc., Farbod Pirshirazi, Farinaz Pirshirazi, and Farshad Pirshirazi are GRANTED. Counsel to give notice.
Ruling
MARISSA LAND, ET AL. VS VBIO INC., A DELAWARE CORPORATION, ET AL.
Jul 17, 2024 |21STCV28812
Case Number: 21STCV28812 Hearing Date: July 17, 2024 Dept: 76 Plaintiff Jamil Houstons motion to compel further responses to special interrogatories, set two, from Defendant Resonant Technologies Group, LLC is GRANTED as to special interrogatories Nos. 21 35. Further responses are due within 30 days. Plaintiffs request for sanctions against Defendant Resonant Technologies Group, LLC and its counsel of record, Buchalter, jointly and severally is GRANTED in the reduced amount of $3,368 for 6 total hours at $600/hour plus $80 in costs. Sanctions are to be paid to Plaintiffs counsel within 30 days. ANALYSIS Motion To Compel Further Responses Special Interrogatories, Set Two Plaintiff Jamil Houston moves to compel further responses to special interrogatories, set one from Defendant Resonant Technologies Group, LLC, and requests sanctions. (a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general. (b) (1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (2) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. (d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (e) If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc § 2030.300 [bold emphasis added].) Defendant Resonant Technologies Group, LLC served responses on June 1, 2023. (Declaration of Alishan Jadhavji, ¶ 5; Exh. B.) The parties agreed to an extension of December 8, 2023 to file the motion. (Id., ¶ 11.) Plaintiffs counsel engaged in meet and confer efforts prior to filing the motion. (Id.) The Court will address the special interrogatories set forth in the separate statement: ¿ Special Interrogatory Nos. 21 35: GRANTED. Defendant indicated it would not respond to the interrogatory. Defendants objections are OVERRULED as without merit. Further, any objections not asserted in the response have been waived. Objections which the responding party did not raise in initial responses are deemed to have been waived. (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 272-76 [holding that the attorney-client privilege was waived by failing to present the objection in the initial response to requests for production of documents].) Defendants sole recourse is to seek a relief from waiver pursuant to Code Civ. Proc. § 2031.300(a)(1) & (2). (Id. at 274-75 [noting that the sole remedy for relief from waiver in the context of discovery is contained within the provisions of the Act and [a party] cannot rely upon the provisions of [Code of Civil Procedure] section 473.]) Notably, Defendant is simply engaging in an ipse dixit as to its potential liability, which is not relevant. Plaintiff is entitled to discovery on evidence regarding a potential alter ego liability theory, or other theory to hold Defendant liable as a joint employer. As a general matter, the statutory scheme imposes no obligation on a party propounding interrogatories to establish good cause or prove up the merits of any underlying claims. (See Code Civ. Proc., §§ 2017.010, 2030.0102030.310.) . . . . . . [*551] . . . . . . California law permits the use of discovery to get information necessary to plead a cause of action (citation omitted); it also permits the use of discovery to determine whether an individual dispute is only a drop in the pond and a broader representative action is warranted. Doubts as to whether particular matters will aid in a party's preparation for trial should generally be resolved in favor of permitting discovery; this is especially true when the precise issues of the litigation or the governing legal standards are not clearly established. (Citations omitted.) In pursuing such discovery, the strength or weakness of the plaintiff's individual claim is immaterial: [I]t is well established that relevancy of the subject matter does not depend upon a legally sufficient pleading, nor is it restricted to the issues formally raised in the pleadings. (Union Mut. Life Ins. Co., at p. 10.) (Williams v. Superior Court (2017) 3 Cal.5th 531, 550-51.) Moreover, Plaintiff is entitled to discover information which go to defining the scope of a representative action: Marshalls also contends the trial court had discretion, based on the extremely meager showing that plaintiffs' counsel has made in this case, to condition interrogatory responses on prior submission to a deposition and substantive proof of the complaint's allegations. But California law has long made clear that to require a party to supply proof of any claims or defenses as a condition of discovery in support of those claims or defenses is to place the cart before the horse. The Legislature was aware that establishing a broad right to discovery might permit parties lacking any valid cause of action to engage in fishing expedition[s], to a defendant's inevitable annoyance. (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 385.) It granted such a right anyway, comfortable in the conclusion that [m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. (Id. at p. 386.) That the eventual proper scope of a putative representative action is as yet uncertain is no obstacle to discovery; a party may proceed with interrogatories and other discovery methods precisely in order to ascertain that scope. (Union Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 912 [145 Cal. Rptr. 316].) In Union Mut. Life Ins. Co., the plaintiff in an insurance dispute issued interrogatories seeking information about other insureds nationwide. The defendant objected on the ground no national class action had been alleged and the answers at best would inform the plaintiff as to whether to amend to allege such a class action. The Court of Appeal explained, [t]his is the precise reason why the discovery should be permitted. (Id. at p. 12.) California law permits the use of discovery to get information necessary to plead a cause of action (id. at p. 11); it also permits the use of discovery to determine whether an individual dispute is only a drop in the pond and a broader representative action is warranted. Doubts as to whether particular matters will aid in a party's preparation for trial should generally be resolved in favor of permitting discovery; this is especially true when the precise issues of the litigation or the governing legal standards are not clearly established. (Ibid.; see Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 791, fn. 8 [183 Cal. Rptr. 810, 647 P.2d 86].) In pursuing such discovery, the strength or weakness of the plaintiff's individual claim is immaterial: [I]t is well established that relevancy of the subject matter does not depend upon a legally sufficient pleading, nor is it restricted to the issues formally raised in the pleadings. (Union Mut. Life Ins. Co., at p. 10.) [*552] It follows that a party allegedly subject to an illegal employment policy need not already have direct, personal knowledge of how prevalent that policy is to seek contact information for other employees that may allow the plaintiff to determine the proper extent of any representative action. Instead, the contact information is reasonably understood as a legitimate starting point for further investigations through which a plaintiff may educate [himself or herself] concerning [the parties] claims and defenses. (Puerto v. Superior Court, supra, 158 Cal.App.4th at pp. 1250,De 1249.) In sum: Marshalls made no showing of the burden disclosure would impose, and the statutory scheme imposes no good cause requirement for seeking information by interrogatory. Accordingly, on the record here, claims of undue burden do not support the trial court's refusal to permit Williams discovery of statewide employee contact information until he supplies Marshalls with discovery and establishes both some merit to his personal claim and reason to be certain others had similar claims. (Williams v. Superior Court (2017) 3 Cal. 5th 531, 550-52 [bold emphasis added].) Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter. . . . (Code Civ. Proc., § 2017.010.) Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations: The Civil Discovery Act also provides that a party may obtain information by the use of various methods, including oral and written depositions. (Code Civ. Proc., § 2020.010, subd. (a).) The party's ability to subpoena witnesses presumes that he has the witnesses' contact information. (Dixon, at p. 443.) (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249.) Moreover, the fact that identical responses have been provided to co-Plaintiff Land does not render the special interrogatories moot as to Plaintiff Houston. Even duplicative discovery propounded by the same party may be permitted. It follows that the selection of the method of discovery to be utilized is to be made by the party seeking discovery. It cannot be dictated by the opposing party. (Citations omitted.) Moreover, the choice is subject to a trial court's control only to the extent consistent with express statutory limitations. ( Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 383.) n4 A party is permitted to use multiple methods of obtaining discovery and the fact that information was disclosed under one method is not, standing alone, a proper basis for refusing to provide discovery under another method. ( Coy v. Superior Court (1962) 58 Cal.2d 210, 218-219 [23 Cal.Rptr. 393, 373 P.2d 457].) (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 739.) Moreover: A party is generally entitled to discovery upon a showing, not that he knows what he will find, but that it is reasonable to expect the proposed discovery to yield pertinent and otherwise admissible evidence. (See Code Civ. Proc., § 2017.010; former Code Civ. Proc., § 2017, subd. (a), enacted 1986, repealed Stats. 2004, ch. 182.) (City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 931.) If the responses are truly duplicative, then Defendant can simply cut and paste the responses and verify them. Further responses are due within 30 days. Plaintiffs request for sanctions against Defendant Resonant Technologies Group, LLC and its counsel of record, Buchalter, jointly and severally is GRANTED in the reduced amount of $3,368 for 6 total hours at $600/hour plus $80 in costs. (Decl. of Aishan A. Jadhavji, ¶ 12.) Sanctions are to be paid to Plaintiffs counsel within 30 days.
Ruling
ELIZABETH SHUAI WONG VS FLIPFIT, ET AL.
Jul 22, 2024 |23STCV30186
Case Number: 23STCV30186 Hearing Date: July 22, 2024 Dept: 56 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT ELIZABETH SHUAI WONG, Plaintiff, vs. FLIPFIT, f.k.a. HUMANS, INC., a Delaware corporation, NOORULDEEN ALAARIF, a.k.a. NOOR AGHA, an individual, and DOES 1 to 100, inclusive, Defendants. CASE NO.: 23STCV30186 [TENTATIVE] ORDER RE: MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIESS, SET ONE Date: July 22, 2024 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Plaintiff Elizabeth Shuai Wong (Plaintiff) RESPONDING PARTY: Defendant Flipfit, fka Humans, Inc. (Defendant) The Court has considered the moving, opposition and reply papers. BACKGROUND This is a representative action filed by Plaintiff on December 11, 2023, seeking recovery of civil penalties under the Private Attorneys General Act of 2004, California Labor Code §2698, et seq. (PAGA), for alleged Labor Code violations of: failure to pay minimum wage, failure to pay overtime wages, failure to provide all required meal periods, failure to authorize or permit all required rest periods, failure to pay all earned wages each pay period, failure to provide accurate wage statements, failure to pay vested vacation wages, failure to reimburse necessary business expenditures, failure to pay all wages due upon separation of employment, failure to maintain an effective Injury and Illness Prevention Program and retaliation for use of Covid-19 supplemental sick pay. On April 22, 2024, Plaintiff filed a Motion to Compel Defendants Responses to Plaintiffs Requests for Production, Set One (the RFPs Motion), and a Motion to Compel Defendants Responses to Plaintiffs Special Interrogatories, Set One (the SIs Motion) (collectively, the Motions). Defendant filed a consolidated opposition to the Motions on July 9, 2024, and Plaintiff filed a reply on July 15, 2024. DISCUSSION SIs Motion Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP § 2030.290, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2030.290, subd. (a).) The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906.) Here, Plaintiff served Defendant with Special Interrogatories, Set One (SIs) on January 30, 2024. (Declaration of Leonard H. Sansanowicz in Support of SIs Motion, ¶ 3.) Defendant had not served responses to the SIs as of the date of filing of the SIs Motion on April 22, 2024. (Id., ¶ 11.) On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections. (Declaration of Matthew Theriault (Theriault Decl.), ¶ 10.) Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the SIs on June 7, 2024. (Supplemental Declaration of Leonard H. Sansanowicz in Support of Plaintiffs Reply (Sansanowicz Supp. Decl.), ¶ 22.) Accordingly, since responses to the SIs, without objections, have now been served, the SIs Motion is MOOT. To the extent that Plaintiff contends that the responses are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses. RFPs Motion When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand. (CCP § 2031.300, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2031.300, subd. (a).) Here, Plaintiff served Defendant with Requests for Production of Documents, Set One (RFPs) on January 30, 2024. (Declaration of Leonard H. Sansanowicz in Support of RFPs Motion, ¶ 3.) Defendant had not served responses to the RFPs as of the date of filing of the RFPs Motion on April 22, 2024. (Id., ¶ 11.) On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections. (Theriault Decl., ¶ 10.) Additionally, on July 9, 2024, Defendant produced documents. (Id.) Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the RFPs on June 7, 2024. (Sansanowicz Supp. Decl., ¶ 22.) Accordingly, since responses to the RFPs, without objections, have now been served, and documents have been produced, the RFPs Motion is MOOT. To the extent that Plaintiff contends that the responses and documents produced are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses. Monetary Sanctions Nevertheless, the question of sanctions still remains before the Court. [P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses]. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407.) Even if the untimely response does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses&the trial court retains the authority to hear the motion. (Id., at pp. 408-409.) This rule gives an important incentive for parties to respond to discovery in a timely fashion. (Id., at p. 408.) If the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions, the trial court may deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions. (Id. at p. 409; Cal. Rules of Court, rule 3.1348, subd. (a) [The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed].) The court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (CCP § 2030.290, subd. (c).) [T]he court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Id., § 2031.300, subd. (c).) In this case, Defendant asserts that the delayed responses were caused by unexpected medical issues experienced by the previous attorney handling the case. The Court also acknowledges that there have been multiple changes in the counsel representing Defendant. Furthermore, Plaintiff agreed to an extension for Defendant to provide responses by June 7, 2024, and Defendant complied with this deadline. (Sansanowicz Supp. Decl., ¶¶ 17-22; Theriault Decl., ¶¶ 8-10.) Thus, the Court finds that, under the circ*mstances, there is substantial justification for the delayed responses and that monetary sanctions are not warranted. Accordingly, no sanctions are imposed. RULING The Motions are DENIED as moot. The requests for monetary sanctions are also DENIED. Moving Party is ordered to give notice of this ruling. Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. Dated this 22nd day of July 2024 Hon. Holly J. Fujie Judge of the Superior Court
Ruling
SEBASTIAN COVARRUBIAS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED VS FRIDA RESTAURANT BEVERLY HILLS, LLC, A LIMITED LIABILITY COMPANY
Jul 17, 2024 |23SMCV02492
Case Number: 23SMCV02492 Hearing Date: July 17, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE June 13, 2024, continued to July 17, 2024 CASE NUMBER 23SMCV02492 MOTION Motion to Compel Arbitration MOVING PARTY Defendant Frida Restaurant Beverly Hills, LLC OPPOSING PARTY Plaintiff Sebastian Covarrubias MOTION On June 7, 2023, Plaintiff Sebastian Covarrubias (Plaintiff) brought this California Private Attorney Generals Act (PAGA) action individually and on behalf of all aggrieved employees against Defendant Frida Restaurant Beverly Hills, LLC (Defendant), Plaintiffs former employer. Defendant now moves to compel Plaintiffs individual claims to arbitration, based on a standalone arbitration agreement Plaintiff signed when he was hired. Plaintiff opposes the motion, Defendant replies, and Plaintiff objects to the evidence submitted with the Reply. The Court does not generally consider reply evidence, as it deprives the opposing party of a fair opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.) Therefore, to address the due process concerns arising due to Defendants reply evidence, the Court continued the hearing to allow Plaintiff to submit a sur-reply, which the Court has now read and considered. The parties also subsequently filed a joint stipulation on July 12, 2024 to correct the record that Plaintiff did work on 11 Wednesdays between May and September 2021. EVIDENTIARY OBJECTIONS Because the due process concerns have been alleviated by the Court allowing Plaintiff to file a sur-reply, which the Court has read and considered, in addition to the parties subsequent joint stipulation to correct the record, the Court overrules Plaintiffs evidentiary objections to the Reply evidence in their entirety. ANALYSIS 1. MOTION TO COMPEL ARBITRATION LEGAL STANDARDS [T]he advantages of arbitration include a presumptively less costly, more expeditious manner of resolving disputes. It follows a party to a valid arbitration agreement has a contractual right to have its dispute with another party to the contract resolved quickly and inexpensively. (Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 99100 [cleaned up].) Thus, on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists. (Code Civ. Proc., § 1281.2; see also EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1320 [the language in section 1281.2 compelling arbitration is mandatory].) The right to compel arbitration exists unless the court finds that the right has been waived by a partys conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2, subds. (a)-(c).) On a petition to compel arbitration, the trial court must first determine whether an agreement to arbitrate the controversy exists. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the respondent's signature. (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543-544 [cleaned up].) The party seeking to compel arbitration must also plead and prove a prior demand for arbitration and a refusal to arbitrate under the agreement. (Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640-641.) And while the moving party on a motion to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, [a] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842 [cleaned up]; see also Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability].) 2. ENFORCEABLE ARBITRATION AGREEMENTS Defendant has provided the Declaration of Gilberto Romo, indicating the following: 1. I am employed as the Head Chef at the Cantina Frida restaurant in Beverly Hills, California, which is owned by Frida Restaurant Beverly Hills, LLC (Frida), the Defendant in the above-entitled action. I have personal knowledge of the facts set forth herein, which are known by me to be true and correct, and if called as a witness, I could and would competently testify thereto. 2. In operating its restaurant in Beverly Hills, California, Frida is engaged in interstate commerce. The food and beverages Frida purchases to prepare its menu items are, in some cases, supplied by vendors from outside of California. Likewise, the food and beverages (such as Tequila and other liquor) Frida offers on its menu are, in some cases, produced outside the United States, and in other cases produced in states outside California. Frida is also a public restaurant located in a popular tourist location (Beverly Hills) that serves all customers, including those from outside of California and the United States. 3. Part of my responsibilities for Frida involve hiring employees at the restaurant. It is Fridas policy that all of its new employees are given the option of reviewing and filling out employment paperwork (including agreements to arbitrate) in either English or Spanish. It is also Frida policy that a Frida employee go over the employment paperwork (including agreements to arbitrate) with all new employees any questions they may have and to ensure they fully understand the paperwork they are signing. The executed employment paperwork is then kept on site at the restaurant in each employees respective files. 4. Plaintiff Sebastian Covarrubias is a former employee of Frida. At the time he was hired by Frida, Covarrubias signed a written arbitration agreement (Arbitration Agreement). A true and correct copy of the Arbitration Agreement signed by Covarrubias is attached hereto as Exhibit A. The original Arbitration Agreement was made in the regular course of Fridas business, and is maintained (along with all of Fridas other employee files) at the restaurant. 5. Mr. Covarrubias speaks both English and Spanish, and has no difficulty understanding English. 6. On or about July 30, 2022, Covarrubias employment with Frida was terminated. A true and copy of the separation notice from his employment file is attached hereto as Exhibit B. (Romo Decl. ¶¶ 1-6.) Attached as Exhibit A to the Romo Declaration is a copy of a Mutual Arbitration/Class Action Waiver Agreement signed only by Plaintiff. The signature and date lines for Vicente Del Rio, President to sign on behalf of Defendant are blank. Further, the Employee and Employer lines at the beginning of the agreement are blank. Plaintiff argues that the writing memorializing an arbitration agreement need not be signed by both parties in order to be upheld as a binding arbitration agreement. (Serafin v. Balco Properties Ltd., LLC (235 Cal.App.4th 165, 176) (hereafter Serafin.) The Court generally agrees that an agreement to arbitrate may be express or implied (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420-421) and that a writing memorializing an agreement does not necessarily have to be signed by both parties for the Court to find the existence of a binding agreement to arbitrate (Serafin, supra, 235 Cal.App.4th at p. 176.) As the Court of Appeal has explained, it is not the presence or absence of a signature which is dispositive; it is the presence or absence of evidence of an agreement to arbitrate which matters. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 361, emphases in original.) For example, in Serafin, the employee was presented with a MANDATORY ARBITRATION POLICY that indicated Any and all claims arising out of or in any way connected with your employment [&] must be submitted to binding arbitration. and All employees will be required to sign an acknowledgment stating that they understand this policy and will comply with it. (Serafin, supra, 235 Cal.App.4th at pp. 174-175.) Thus, in Serafin, the employer had a mandatory arbitration policy that all employees were required to agree to, and the employees assent to that policy was demonstrated by virtue of the employees signature (as well as by the employees choice to continue employment). Similarly here, Plaintiff was presented with a standalone Mutual Arbitration/Class Action Waiver Agreement that provides: 4. THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AGREEMENT AND CLASS ACTION WAIVER PROVISION SUCH THAT BOTH PARTIES GIVE UP ALL RIGHTS TO A JURY TRIAL AND TO PROCEED IN A CLASS OR MULTIPLE PARTY ACTION. [&] 5. This Agreement contains all the terms, obligations and understandings between the parties regarding its subject matter. (Ex. A to Romo Decl. at ¶¶ 4-5.) After being presented with the agreement, Plaintiff signed it. a. UNCONSCIONABILITY Unconscionability is ultimately a question of law for the court. (Flores v. Transamerica Homefirst, Inc. (2001) 93 Cal.App.4th 846, 851.) However, numerous factual issues may bear on that question. (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 89.) As such, Plaintiff must show two elements to establish the unconscionability defense: (1) procedural unconscionability, which focuses on the manner in which the contract was negotiated, and (2) substantive unconscionability, which concerns whether the contracts terms are unreasonably one-sided. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113-115 (hereafter Armendariz).) The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree. Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. (Armendariz, supra, 24 Cal.4th at p. 114 [cleaned up].) i. PROCEDURAL UNCONSCIONABILITY Procedural unconscionability examines the oppression that arises from unequal bargaining power and the surprise to the weaker party that results from hidden terms or the lack of informed choice. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Preprinted forms buried within a volume of documents offered on a take or leave it basis evidence a high degree of procedural unconscionability. (See Dougherty v. Roseville Heritage Partners (2020) 47 Cal.App.5th 93, 102-104 (hereafter, Dougherty).) Most consumer contracts are adhesive and therefore present some procedural unconscionability. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915, (hereafter, Sanchez).) [A] finding of procedural unconscionability does not mean that a contract will not be enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided. (Ibid.) Plaintiff argues that the Arbitration Agreement is procedurally unconscionable because it was presented to him only in English and with no language assistance, despite the fact that Plaintiff only speaks and understands Spanish; it was offered on a take-it-or-leave-it basis; and was a mandatory condition of employment. In particular, Plaintiff declares in a certified translated declaration: 5. Specifically, it is my understanding that Frida is stating that I cannot pursue this case, because I signed a document in English-only called "MUTUAL ARBITRATION / CLASS ACTION WAIVER AGREEMENT." But I do not understand, read, or speak English and nobody translated or explained what this document means when I signed it on May 17, 2021. 6. I also learned that a chef at Frida named Gilberto Romo is claiming that I have "no difficulty understanding English." This is also surprising, considering that, to my recollection, I have never met Mr. Gilberto Romo and, as discussed in this Declaration, I do not understand, speak, read, and write English - especially, legal documents in English. 7. By way of background, I was born on November 5, 1968 in Mexico City, Mexico and Spanish is my native language. 8. Growing-up in Mexico City, Spanish was the only language spoken in my home. I never attended any formal education and worked as a general laborer in Mexico speaking only Spanish. In other words, Spanish is the only language that I understand, read, and speak. This means that I cannot write, speak, or understand English. 9. This remains the case today even though I moved to the United Stales in 2015 for better work opportunities. 10. As part of doing so, on May 14, 2021, I submitted an application for employment to Frida to work in the restaurant. 11. I completed the application in Spanish because I am unable to read or write in English. Attached as Exhibit A is a true and correct copy of relevant parts or my personnel file that Frida provided lo me, including this application. 12. As part of the hiring process, I spoke with Frida's restaurant manager, Salvador Negrete. He informed me that as a back-of-the-house employee - specifically, a busser - that speaking and understanding English were not essential to perform my job duties, since I will not be communicating with customers. 13. This came as a relief, because, as noted above, I do not speak and understand English. 14. After submitting my application and my interview with Mr. Negrete, I was hired by Frida as a busser. 15. Before I could work for Frida, on May 17, 2024, Mr. Negrete and I met in a small room by the kitchen. There was no one else present during this meeting. 16. At that time, he gave me a mountain of documents, including, in addition to the "MUTUAL ARBITRATION/ CLASS ACTION WAIVER AGREEMENT," Workers Compensation Notice Form," "Labor Code 2810.5 Notice to Employee," W-4," "1-9," "Probationary Period Agreement," "Policy Regarding Interpersonal Relationships and Fraternization," "Uniform Policy," "Employee Handbook Acknowledgement," "Meal and Rest Period Policy," "Policy Against Discrimination Harassment Bullying and Retaliation," "Waiver of Health Coverage," and "Alcohol Service Policy." 17. All of these documents were in English and I did not understand them. Mr. Negrete just told me not worry about that and just to sign the documents so I can begin working. 18. Embarrassingly, I did not even know where to sign the documents, because they were in English. To assist me, he highlighted where I needed to sign. 19. Feeling under duress and with no other options, I signed the documents where he indicated that I should. 20. To be clear, I was not provided an opportunity to review the documents and the documents were never translated from English to Spanish. 21. Similarly, Frida did not provide me the opportunity to take the documents home to review with someone that could explain what I was signing. 22. Importantly, at no time did Mr. Negrete, nor anyone else at Frida, explain to me that by signing the "MUT UAL ARBITRATION / CLASS ACTION WAIVER AGREEMENT" that I was waiving my right to pursue any employment disputes in this Court. 23. If I understood that Frida was asking that I waive this important right, I never would have signed that document. (Covarrubias Decl. ¶¶ 5-23.) Defendant contends that Plaintiff does read, speak, and understand English, as evidenced by the fact that Plaintiff completed an English-language employment application form, in which he filled out answers in both English and Spanish languages, and provided applicable responses to English-language prompts. Further, Defendant has provided the declarations of Danilo Mattos and Yolanda Gutierrez, indicating that Plaintiff has interacted with them and with customers in the English language. (Mattos Decl. ¶ 4; Gutierrez Decl. ¶ 5.) Defendant also provides declaratory evidence that it is Fridas policy to offer new hires the option to fill out their employment paperwork in the Spanish language. (Vargas Decl. ¶ 2; Mattos Decl. ¶ 5; Gutierrez Decl. ¶ 7.) Upon review of Plaintiffs employment application, the Court notes that the only words Plaintiff wrote in the English language are the job titles for which he was applying, busser, dishwasher, and street names concerning addresses. Otherwise, the documents were filled out entirely in the Spanish language. Plaintiff offers a further declaration in connection with the sur-reply that addresses Gutierrez assertion that Gutierrez frequently interacted with Plaintiff during the evening shift on Wednesdays, indicating that Plaintiff did not work Wednesdays. (Further Covarrubias Decl. ¶¶ 6-7.) But Plaintiffs assertion is contrary to the stipulation the parties filed, indicating that Plaintiff did work on 11 Wednesdays between May and September 2021. Ultimately, the Court finds that the language barrier inserted a high degree of procedural unconscionability into arbitration agreement, as Plaintiff did not and does not read, speak, or understand the English language, and was not presented with the forms in the Spanish language or given an opportunity to take the forms home to review prior to signing. The agreement was also presented to Plaintiff on a take it or leave it basis, and Plaintiff was pressured to sign the forms without reading or understanding them in order to obtain employment. Therefore, the Court determines that the agreement is highly procedurally unconscionable. ii. SUBSTANTIVE UNCONSCIONABILITY Substantive unconscionability refers to agreement terms which are overly harsh, unduly oppressive, unreasonably unfavorable, or so one-sided as to shock the conscience which, for practical purposes, all mean the same thing. (Sanchez, supra, 61 Cal.4th at p. 915.) With regard to demonstrating substantive unconscionability, an old-fashioned bad bargain or a contract term which merely gives one side a greater benefit is insufficient. (Id. at pp. 911-912.) The test for substantive unconscionability is whether the terms impair the integrity of the bargaining process or otherwise contravene public policy, or the terms attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law or negate the reasonable expectations of the nondrafting party. (Sonic-Calabassas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145; see also Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 247 [outside the reasonable expectation of the nondrafting party or is unduly oppressive]; Dougherty, supra, 47 Cal.App.5th at pp. 104-107 [arbitration agreement that curtailed plaintiffs ability to recover statutory remedies, such as punitive damages and attorney fees, and contained limitations on discovery that risked frustrating plaintiffs statutory elder abuse claims was substantively unconscionable].) Where arbitration agreements between employers and employees lack mutuality, they are substantively unconscionable, unless the employer can adequately justify the one-sidedness. Given the disadvantages that may exist for plaintiffs arbitrating disputes, it is unfairly one-sided for an employer with superior bargaining power to impose arbitration on the employee as plaintiff but not to accept such limitations when it seeks to prosecute a claim against the employee, without at least some reasonable justification for such one-sidedness based on business realities. As has been recognized unconscionability turns not only on a one-sided result, but also on an absence of justification for it. As has been recognized 'unconscionability turns not only on a one-sided result, but also on an absence of justification for it. (Armendariz, supra, 24 Cal.4th at pp. 117118 [cleaned up].) Here, because Defendant never signed the arbitration agreement, Plaintiff would not have been able to similarly compel Defendant to arbitration. As such, when a dispute arises, Defendant, alone can decide whether to litigate the dispute in court or whether to compel arbitration, as its own best interests may dictate. Defendant does not provide any reasonable justification for the lack of mutuality, and instead merely concludes that the Agreement satisfies the minimum requirements of Armendariz [&.] (Reply at p. 5.) A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. (Code Civ. Proc., § 1636, emphases added.) Therefore, the Court finds that the Agreement is also substantively unconscionable for lack of mutuality. b. SEVERABILITY Because of the high degree of procedural unconscionability, due to the language barrier and the manner in which Plaintiff was presented with the forms on a take it or leave it basis and pressured to sign them right away without reading or understanding what they said and because of the non-mutuality of the arbitration provision, the Court finds that these issues permeate the entire arbitration agreement and cannot be cured by severance. CONCLUSION Having found the arbitration agreement at issue to be highly procedurally unconscionable and substantively unconscionable due to lack of mutuality, the Court denies Defendants Motion to Compel Arbitration and to Stay the representative PAGA action. Defendant shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: July 17, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court
Ruling
TOM BURGETT VS SHADOW WOLF ENERGY, LLC, A NEVADA CORPORATION, ET AL.
Jul 18, 2024 |23STCV21735
Case Number: 23STCV21735 Hearing Date: July 18, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 18, 2024 Case Name: Burgett v. Shadow Wolf Energy, LLC, et al. Case No.: 23STCV21735 Matter: Motion for Leave to File Second Amended Complaint Moving Party: Plaintiff Tom Burgett Responding Party: Unopposed Notice: OK Ruling: The Motion is granted. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. Plaintiff Tom Burgett seeks leave to file a second amended complaint adding allegations pertaining to a second termination. The Court may, in the furtherance of justice, and upon any terms as may be proper, allow a party to amend any pleading. (Code Civ. Proc. §§ 473, 576.) In general, California courts liberally exercise discretion to permit amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) [T]here is a strong policy in favor of liberal allowance of amendments. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296.) Pursuant to this policy, requests for leave to amend generally will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the Court, and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.) The decision on a motion for leave is directed to the sound discretion of the trial court. (See generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶¶ 6:637 et seq.) Because the Motion is unopposed and it is not apparent what prejudice there would be, the Motion is granted. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The SAC is to be filed within 10 days. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
ASHTON BAKER VS WEBER DISTRIBUTION LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Jul 16, 2024 |21LBCV00374
Case Number: 21LBCV00374 Hearing Date: July 16, 2024 Dept: S27 Background Facts Plaintiff, Ashton Baker filed this PAGA action against Defendants, Weber Distribution, LLC and Weber Logistics for labor code violations. 1. Motions for Approval of PAGA Settlement a. Settlement Plaintiff and Defendant participated in an arms length mediation, and they agreed to a settlement of the PAGA claims at the conclusion of the mediation. The settlement affects approximately 1098 aggrieved employees and covers the employment period between 11/11/19 and 6/02/23. The settlement requires Defendant to pay $1,900,000, which would be paid out as follows: $760,000 attorneys fees $11,370.02 litigation expenses $8000 administration expenses $7500 representative incentive payment to Plaintiff $1,113,129.98 net settlement remaining, of which 75% ($834,847.48) will go to LWDA and 25% ($278,282.50) will be paid to aggrieved employees b. Analysis i. Does a presumption of fairness exist? Was the settlement reached through arm's-length bargaining? Yes. The parties participated in a full-day mediation with Daniel Buckley, Esq., and ultimately agreed to settle at the conclusion of the session on 8/02/23. Fawley Declaration, ¶13. Were investigation and discovery sufficient to allow counsel and the court to act intelligently? Yes. Fawley provides a detailed description of all discovery conducted at ¶14 of her declaration in support of the motion. Is counsel experienced in similar litigation? Yes. Attorney Fawley details the firms experience with PAGA litigation at ¶¶2-7 of her declaration. What percentage of the class has objected? n/a CONCLUSION: The settlement is entitled to a presumption of fairness. ii. Is the settlement fair, adequate, and reasonable? Strength of Plaintiffs' case. 1. "The most important factor is the strength of the case for plaintiffs on the merits, balanced against the amount offered in settlement." (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) Plaintiff explains the strengths and weaknesses of the case at pages 14-15 of the moving papers. 2. Risk, expense, complexity and likely duration of further litigation. Given the nature of the claim, the case is likely to be expensive and lengthy to try. Procedural hurdles (e.g., motion practice and appeals) are also likely to prolong the litigation as well as any recovery by the aggrieved employees. 3. Risk of maintaining class action status through trial. n/a 4. Amount offered in settlement. The Settlement Amount is reasonable in light of the risks of the case, and in light of the fact that the settlement was reached through mediation. 5. Extent of discovery completed and stage of the proceedings. As indicated above, at the time of the settlement, Plaintiff's Counsel had conducted sufficient discovery. 6. Experience and views of counsel. The settlement was negotiated and endorsed by Plaintiff's Counsel who, as indicated above, is experienced in PAGA litigation. CONCLUSION: The settlement can be deemed "fair, adequate, and reasonable." iii. Scope of the release Upon the approval by the Court of this Settlement, each PAGA Member (including Plaintiff), shall fully release Defendant from all claims arising out of the facts set forth in Plaintiffs LWDA notice and complaint. Plaintiff will also provide a general release and CC §1542 waiver as to Defendant. iv. Is the notice proper? PAGA has no notice requirements for unnamed class members, nor may such employees opt out of a PAGA actions. See Hernandez v. DMSI Staffing, LLC. (N.D. Cal. 2015) 79 F.Supp.3d 1054, 1063, aff'd sub nom. Hernandez v. DMSI Staffing, LLC (9th Cir. 2017) 677 Fed. Appx. 359. See also Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56. The parties have prepared a cover letter to send to all aggrieved employees along with their settlement share checks, which the parties ask the Court to approve. v. Attorney fees and costs An aggrieved employee who prevails in a PAGA action may recover reasonable attorney's fees and costs. Labor Code §2699(g)(1). Whether a plaintiff established entitlement to an award of fees under PAGA is a question best decided by the trial court. San Diego Municipal Employees Association v. City of San Diego (2016) 244 Cal.App.4th 906. Counsel requests $760,000 in litigation fees (40% to the gross settlement). Per Counsels declaration, this amount is fair and reasonable. Counsel requests reimbursem*nt for costs incurred during the litigation in the sum of $11,370.02, which is also fair and reasonable. The Court will approve all requested amounts. vi. Representative Enhancement Award The Settlement Agreement provides for $7500.00 for a representative payment. Plaintiff and Plaintiffs attorney both declare this incentive is based on Plaintiffs willing participation in every stage of the litigation. The Court also notes that Plaintiff has agreed to a broad waiver of all future claims. The Court finds the incentive award reasonable. vii. Claims Administration Costs The Settlement Agreement provides for $8000.00 in Administration Costs to Phoenix. This is fair and reasonable and in line with the normal amount sought by administrators in these cases. viii. Conclusion The Court finds the settlement and all requested fees and costs to be reasonable, and the Court will grant the motion to approve the settlement. Plaintiff is ordered to give notice. Parties who intend to submit on this tentative must call the court at 562-256-2227 indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive a phone call indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.
Ruling
JULIO GARCIA VS COUNTY OF LOS ANGELES
Jul 16, 2024 |23STCV27978
Case Number: 23STCV27978 Hearing Date: July 16, 2024 Dept: 49 Julio Garcia v. The County of Los Angeles PLAINTIFFS SECOND AMENDED MOTION FOR DISCOVERY OF PEACE OFFICERS PERSONNEL RECORDS (PITCHESS MOTION) MOVING PARTY: Plaintiff Julio Garcia RESPONDING PARTY(S): Defendant County of Los Angeles STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiff Julio Garcia, a Hispanic American male, worked as a Supervising Deputy Probation Officer for the County. Plaintiff alleges Defendant County discriminated against him based on his ethnicity by transferring him to a new work location and giving him increased work compared to non-Hispanic employees. Plaintiff brings causes of action for (1) FEHA discrimination, (2) FEHA harassment, (3) FEHA retaliation, (4) failure to prevent discrimination, harassment, or retaliation, and (5) violation of Labor Code Section 1102.5. Plaintiff now moves to compel disclosure of peace officer personnel records of Victor Banuelos, Janice Jones, Sharrieff Myers, and Jessica Carrington. Defendant opposed. TENTATIVE RULING: Plaintiffs Pitchess Motion is GRANTED as modified herein. Defendant is ordered to produce the subject records for in camera review. The Court sets an in camera hearing for a date TBD in Department 49, Stanley Mosk Courthouse. Moving party to give notice, unless waived DISCUSSION: Pitchess Motion I. Objections to Evidence Defendant County has submitted various objections to the declaration of Plaintiff Julio Garcia. This court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)) or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.) As such, the court respectfully declines to rule on these objections. The court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence. II. Legal Standard The Pitchess procedure applies when discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records. (Evid. Code § 1043(a).) Obtaining discovery of peace officers personnel records is a two-step process. First, the party seeking discovery must file a motion supported by affidavits showing good cause for the discovery, first by demonstrating the materiality of the information to the pending litigation, and second by stating upon reasonable belief that the police agency has the records or information at issue. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) Second, if the Court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. (Ibid.) This initial burden is a relatively relaxed standard[]. . . . Information is material if it will facilitate the ascertainment of the facts and a fair trial. . . . [A] declaration by counsel on information and belief is sufficient to state facts to satisfy the materiality component of that section. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086, citations omitted, emphasis added.) III. Analysis Plaintiff moves for discovery of the peace officer personnel records of Janice Jones, Victor Banuelos, Sharieff Myers, and Jessica Carrington. Plaintiff contends these persons are management officials who allegedly discriminated against Plaintiff in the present case due to his Hispanic ethnicity. (Mtn. 7: 10-11.) Plaintiff seeks documents that refer, relate or reflect upon disciplinary actions taken by Jones, Banuelos, Myers, and Carrington against Hispanic-Americans such as Plaintiff, both evidencing harassment, discrimination, retaliation or failure to prevent same. (Id. 7: 11-15.) Plaintiff Julio Garcia worked as Supervising Deputy Probation Officer at the Dorothy Kirby Center in Los Angeles County. (Compl. ¶ 6.) Plaintiff, who is Hispanic, alleges that directors at Dorothy Kirby transferred many employees of Hispanic American ethnicity to other locations and replace[d] them with African American County employees. (Id. ¶ 9.) Plaintiff further alleges that Hispanic American employees were assigned more difficult work than African American employees. (Id. ¶ 11.) Plaintiff alleges that after he raised concerns of the obvious favoritism exhibited toward African American employees, he was transferred out of the Dorothy Kirby Center in retaliation. (Id. ¶¶ 18, 20.) Plaintiff now asserts causes of action against the County for (1) FEHA discrimination, (2) FEHA harassment, (3) FEHA retaliation, (4) failure to prevent discrimination, harassment, and/or retaliation, and (5) violation of Labor Code § 1102.5. Defendant opposes the motion. Defendant contends the discovery is a fishing expedition that seeks records irrelevant to Plaintiffs case. In particular, Defendant objects to the temporal scope of the request, which seeks records going back ten years. Here, Plaintiff has included declarations from himself and his attorney, Steven H. Haney, demonstrating the materiality of the discovery sought. This court concludes that Plaintiff has met the good cause showing under the relatively relaxed standard in step one, as the employee records sought are clearly material to the subject matter involved in the litigation. The court agrees with Defendant, however, that the ten-year scope is excessive, and Plaintiff has failed to establish the relevance or need for documents going back that far. Therefore, the requests are modified and limited to only documents going back five (5) years, i.e. from 2018 through 2023. Thus, this justifies an in camera inspection of the files going back five years. (Haggerty, supra, 117 Cal. App. 4th at 1087.) At that time, this court will review those portions of the files in camera and make the standard threshold relevance analysis required under step two of the Pitchess procedure. Accordingly, Plaintiffs Motion is GRANTED as modified herein. Defendant is ordered to produce the subject records for in camera review. The Court sets an in camera hearing for a date TBD in Department 49, Stanley Mosk Courthouse. Moving party is ordered to give notice, unless waived. IT IS SO ORDERED. Dated: July 16, 2024 ___________________________________ Randolph M. Hammock Judge of the Superior Court
Ruling
ARMIDA BURTON VS MERCURY MISSION SYSTEMS, LLC
Jul 18, 2024 |24TRCV00353
Case Number: 24TRCV00353 Hearing Date: July 18, 2024 Dept: P MOTION FOR STAY OF PROCEEDINGS The court considered the moving papers. No opposition papers were filed. RULING Defendant Mercury Mission Systems, LLCs Motion for Stay of Proceedings is GRANTED. BACKGROUND Armida Burton, individually, and on behalf of aggrieved employees pursuant to the California Private Attorney Generals Act, commenced this action on January 31, 2024, by filing a Complaint against Mercury Mission Systems, LLC for violation of California Labor Code sections 2699, et seq (the PAGA Action). On May 22, 2024, defendant filed the instant motion to stay action on the ground that plaintiff filed a substantially identical matter entitled Armida Burton v. Mercury Mission Systems, LLC, Los Angeles County Superior Court No. 24STCV02628 (the Class Action). No opposition has been filed by plaintiff, and defendant filed a notice of non-opposition on July 11, 2024. JUDICIAL NOTICE Defendant requests that this Court take judicial notice of: The Complaint filed on January 31, 2024, in the action entitled Armida Burton v. Mercury Mission Systems, LLC, Los Angeles County Superior Court Case No. 24STCV02628. The request is granted pursuant to Evidence Code Section 452, subdivision (d). LEGAL AUTHORITY Granting a stay in a case where the issues in two actions are substantially identical [citation] is a matter addressed to the sound discretion of the trial court. In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced. [Citations.] (Thomson v. Contl Ins. Co. (1967) 66 Cal.2d 738, 746-747.) DISCUSSION Defendant contends that the PAGA Action should be stayed for the following reasons: (1) the PAGA Action is substantially similar to the Class Action; (2) defendant will be unfairly burdened if a stay is not granted; (3) there is a risk of conflict if both actions proceed simultaneously; (4) it is in the employees best interest for the PAGA Action to be stayed; and (5) the public interest favors a stay. The Court finds that staying the PAGA Action is warranted. The Court finds that sufficient similarities exist between the PAGA Action and the Class Action such that staying the instant action would be in the interest of judicial economy. The Court is persuaded by Defendants arguments specifically regarding the similarities of the casesboth cases allege identical violations based on the same set of alleged facts, and the parties are the same. (Compl.; RJN, Ex. 1.) Further, the motion is unopposed. For these reasons, defendants motion is GRANTED. CONCLUSION Defendant Mercury Mission Systems, LLCs Motion for Stay of Proceedings is GRANTED. The PAGA Action is stayed pending the outcome of the Class Action.
Document
LUIS OCHOA VS SUNRISE RESTAURANTS LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Jul 17, 2024 |Thomas D. Long |Other Employment Complaint Case (General Jurisdiction) |Other Employment Complaint Case (General Jurisdiction) |24STCV17836
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PETER GUINAN VS SHIPPERS TRANSPORT EXPRESS, INC., A CALIFORNIA CORPORATION
Jan 15, 2019 |Mel Red Recana |Other Employment Complaint Case (General Jurisdiction) |Other Employment Complaint Case (General Jurisdiction) |19STCV01484
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