Judge David S. Cunningham, Case 20STCV18020 2022-12-14 Tentative Ruling

Judge: David S. Cunningham, Case: 20STCV18020, Date: 2022-12-14 Tentative Ruling

Moving Party: Amazon.com Services LLC (“Amazon.com”) and Amazon Logistics, Inc. (“Amazon Logistics”) (jointly “Amazon”)

Opposing Party: Jonathan Ibarra (“Ibarra”) and Jessica Nestor (“Nestor”) (jointly “Plaintiffs”)

The demurrer is sustained as to alleged PAGA violations that occurred more than one year before 10/8/21.

The hearing is continued for supplemental briefing as to alleged PAGA violations that occurred no later than one year before 10/8/21.[1]

The second amended complaint (“SAC”) alleges that Amazon.com and Amazon Logistics hire delivery drivers from labor contractors such as Green Messengers, Inc. (“Green Messengers”). Plaintiffs seek to represent current and former employees who purportedly were subjected to “wage and hour” violations by Green Messengers, Amazon.com, and Amazon Logistics. The SAC asserts a single cause of action under PAGA.

On 5/8/20, Plaintiffs filed the initial complaint. It asserted seven “wage and hour” class causes of action against Green Messengers and Does 1 through 100.

On 5/11/20, Plaintiffs submitted a pre-suit PAGA notice to the LWDA.[2] The only named Defendant discussed in the letter is Green Messengers. (See Amazon’s RJN, Ex. A.)

On 7/17/20, Plaintiffs filed the first amended complaint (“FAC”). It asserted the same seven “wage and hour” class causes of action and added a PAGA cause of action against Green Messengers and Does 1 through 100.

On 5/19/21, Plaintiffs filed a Doe amendment, substituting Amazon.com for Doe 1.

On 7/26/21, Judge Ann Jones granted the request to dismiss, leaving the PAGA cause of action as the sole remaining cause of action.

On 10/8/21, Plaintiffs submitted a second pre-suit PAGA notice to the LWDA, identifying Amazon.com and Amazon Logistics as named Defendants. (See id. at Ex. E.)

On 4/29/22, Plaintiffs filed the SAC, which asserts a single PAGA cause of action against Green Messengers, Amazon.com, and Amazon Logistics.

Amazon contends the demurrer should be sustained because Plaintiffs added Amazon.com via Doe amendment prior to submitting a pre-suit notice concerning Amazon.com to the LWDA. (See Demurrer, p. 17.)

The contention is factually correct – the Doe amendment took place on 5/19/21, before Plaintiffs submitted the second pre-suit PAGA notice on 10/18/21 – but it relates to the FAC, which was superseded by the SAC. It does not appear to provide a basis for dismissing the SAC given that the SAC was filed after Plaintiffs served the 10/18/21 notice letter.

Next, Amazon argues that the second pre-suit notice is untimely because Plaintiffs served it more than one year after “the last alleged violation by Amazon[.]” (Id. at p. 14.)

The Court agrees with Amazon. Since Plaintiffs’ employment ended or stopped by October 2019 (see FAC, ¶ 9 [alleging that (1) Ibarra was employed from April 2017 through 8/14/19, and (2) “Nestor has been on a medical leave of absence since October 2019”]; see also FAC, ¶ 14 [same]), they needed to file the second PAGA notice within one year – i.e., by October 2020. (See (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839 [“Because plaintiff's employment terminated in December 2009, to timely pursue PAGA claims for alleged violations occurring during her employment or upon her discharge, plaintiff had until December 2010 to file her PAGA notice.”].) Instead of filing by October 2020, Plaintiffs filed the second PAGA notice on 10/18/21. It follows that the second PAGA notice is untimely as to alleged violations that happened more than one year before 10/18/21.

* The first PAGA notice only discusses Green Messengers, so Plaintiffs cannot relate the second PAGA notice back to the first PAGA notice and the initial complaint. (See Demurrer, p. 16 [addressing Barajas v. Carriage Services, Inc. (N.D. Cal., Dec. 9, 2019, No. 19-CV-02035-EMC) 2019 WL 6699737]; see also Reply, pp. 3-7 [same]; Brown, supra, 28 Cal.App.5th 824; see also Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42.)

* Plaintiffs’ assertion – they did not need to provide Amazon written notice of the pre-suit PAGA letter because Amazon did not employ them (see Opposition, pp. 7-8) – is unavailing. The SAC alleges that Amazon.com and Amazon Logistics were the “‘client employers’ and/or joint employer of Plaintiffs and the aggrieved employees.” (SAC, ¶ 10, emphasis added.) Plaintiffs’ own allegations, which must be taken as true at the demurrer stage, contradict the assertion.

* Plaintiffs’ reliance on Labor Code section 90.6 (tolling) also is unavailing. (See Opposition, pp. 12-13; see also Reply, pp. 8-9.)

* To the extent Plaintiffs contend the statute of limitations should be calculated according to Nestor’s termination date, not her “leave of absence” date (see Opposition, p. 3), the Court disagrees. Amazon represents that Green Messenger ceased operations in late 2019 (see Reply, p. 9), and, regardless, Plaintiffs fail to allege any violation suffered by Nestor after October 2019.

* The Court agrees with Amazon that Plaintiffs’ individual PAGA claims are time-barred. (See Demurrer, pp. 17-18 [arguing that Plaintiffs’ alleged violations took place more than a year before they filed the SAC]; see also Motion to Quash, pp. 9,, 11-13 [arguing that the “relation back” doctrine does not apply because Plaintiffs knew Amazon.com’s identity and facts supporting liability when they filed the initial complaint and the FAC].)

The next issue involves Labor Code section 2699(h). On 1/19/21, the Labor Commissioner issued a citation to Green Messengers and Amazon.com. The citation contains a “Civil Penalty Assessment" period of 1/19/19 to 5/10/19 and a “Wage or Premium Unpaid” period of4/15/18 to 1/18/20. (Amazon’s RJN, Ex. C, p. 1.) Undisputedly, it only imposes civil penalties against Green Messengers, not Amazon.com, yet Amazon contends the citation triggers subsection (h) and bars Plaintiffs’ case. (See Reply, pp. 18-19.)

The Court disagrees. In light of the preceding and following analysis, at most, the representative PAGA claim should apply to alleged violations that occurred no more than one year before 10/8/21. There is no overlap with the citation.

Do Plaintiffs have standing to bring the representative PAGA claim as to alleged violations that occurred up to one year before 10/8/21 despite the apparent untimeliness of their individual PAGA claims? The answer arguably is yes under Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5^th 924.

In Johnson, Gina Johnson signed a document containing a noncompetition clause. She signed the document on 9/7/16. Almost three years later on 6/19/19, she sent notice to the LWDA of her intent to file a representative PAGA action, claiming the noncompetition clause violated California law. “After 65 days lapsed without a response from the [LWDA],” she filed a lawsuit in San Diego County on 9/9/19. (Johnson, supra, 66 Cal.App.5^th at 927.)

The defendant argued that “Johnson’s individual claim was time-barred because she signed the [document] three years before she filed suit.” (Ibid.) “Johnson opposed the demurrer, contending she had standing to bring a claim under PAGA because she was an aggrieved employee and had exhausted the necessary administrative remedies.” (Ibid.) “Further, she maintained that the representative claims were not time-barred because, under PAGA, [the defendant] was subject to penalties for any of its employees who signed [the document] during the applicable period.” (Ibid.)

“[T]he superior court sustained the demurrer without leave to amend. The court determined that Johnson’s individual claim was time-barred, and, as such, she could not pursue a PAGA claim in a representative capacity.” (Ibid.)

“[T]he main issue posed by the parties on appeal [was] whether an employee, whose individual claim is time-barred, may still pursue a representative claim under PAGA.” (Id. at 929.) The Court of Appeal answered “yes” because Johnson had been an “aggrieved employee” at some point. (Id. at 929-930 [“Johnson is an ‘aggrieved employee’ with standing to pursue her PAGA claim. Johnson alleged that . . . she personally suffered at least one Labor Code violation on which the PAGA claim is based. [Citations.] The fact that Johnson’s individual claim may be time-barred does not nullify the alleged Labor Code violations nor strip Johnson of her standing to pursue PAGA remedies.”].)

Here, Plaintiffs arguably have standing because they are former “aggrieved employees” under PAGA.

This issue is not addressed in the parties’ briefs. The Court is raising on its own, so it is appropriate to give the parties an opportunity to provide supplemental briefs.

In conclusion, the Court finds that the demurrer should be sustained as to alleged PAGA violations that occurred more than one year before 10/8/21, and the hearing should be continued for supplemental briefing as to alleged PAGA violations that occurred no later than one year before 10/8/21.

[1] “PAGA” means Private Attorneys General Act.

[2] “LWDA” means Labor and Workforce Development Agency.

Opposing Party: Jonathan Ibarra (“Ibarra”) and Jessica Nestor (“Nestor”) (jointly “Plaintiffs”)

The motion to quash is granted as to alleged PAGA violations that occurred more than one year before 10/8/21.[1]

The hearing is continued for supplemental briefing as to alleged PAGA violations that occurred no later than one year before 10/8/21.

The second amended complaint (“SAC”) alleges that Amazon.com and Amazon Logistics, Inc. (“Amazon Logistics”) hire deliver drivers from labor contractors such as Green Messengers, Inc. (“Green Messengers”). Plaintiffs seek to represent current and former employees who purportedly subjected to “wage and hour” violations by Green Messengers, Amazon.com, and Amazon Logistics. The SAC asserts a single cause of action under PAGA.

Here, Amazon.com moves to quash service of the summons, claiming the Doe amendment is untimely.

“An amended complaint that identifies a person or entity sued under a fictitious name (usually, “Doe”) in the original complaint may ‘relate back’ for statute of limitations purposes to the date of the original complaint.” (Banke & Segal, Cal. Prac. Guide: Civ. Proc. Before Trial Stat. of Limitations (The Rutter Group 2022) ¶ 8:5.)

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly . . . .” (Cal. Code Civ. Proc. § 474.)

For “relation back” effect to be given to an amended complaint substituting a real person or entity as a defendant for a “Doe” defendant, after the statute of limitations has run on the claim:

— allege in the body of the complaint that plaintiff is ignorant to the true name and capacity of each defendant sued by the fictitious name “Doe”; and

— allege a valid cause of action against each “Doe” defendant. [Citation.]

— be filed with leave of court (courts differ on whether a formal motion is required or ex parte application suffices [citation]); and

— be based on the same “general set of facts” as alleged in the original complaint and seek recovery for the “same injuries” [citation].

Plaintiff's requisite “ignorance” of defendant's name has been expansively interpreted to mean either:

— plaintiff was unaware of defendant's culpability (facts giving rise to a cause of action against the defendant); or

— the law did not give plaintiff a right of action until after commencement of the action.

“[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” (Id. at ¶ 8:56, emphasis in original.) “Whether plaintiff was genuinely ‘ignorant’ or had ‘actual knowledge’ of the ‘Doe’ defendant's identity or liability when the complaint was filed is determined by a good faith test.” (Id. at ¶ 8:57, emphasis in original.)

“If the actual knowledge test [citation] is satisfied, it is irrelevant that plaintiff was negligent or failed to exercise reasonable diligence in not having discovered defendant's identity or liability earlier[.]” (Id. at ¶ 8:60, emphasis in original.)

“Similarly, the fact that there were means by which plaintiff could have determined the identity or capacity of a ‘Doe’ defendant when the complaint was filed is irrelevant to whether plaintiff was ‘ignorant’ of these matters.” (Id. at ¶ 8:65, emphasis in original.)

The section 474 procedure also “may be utilized where plaintiff knew defendant's identity but did not know the facts indicating the defendant's culpability at the time the action was filed[.]” (Id. at ¶ 8:70, emphasis in original.) Section 474 “allows delay in naming particular persons as defendants where plaintiff lacks knowledge of sufficient facts to cause a reasonable person to believe liability is probable[.]” (Id. at ¶ 8:71, emphasis in original.)

On 5/8/20, Plaintiffs filed the initial complaint. It asserted seven “wage and hour” class causes of action against Green Messengers and Does 1 through 100.

On 5/11/20, Plaintiffs submitted a pre-suit PAGA notice to the LWDA.[2] The only named Defendant discussed in the letter is Green Messengers. (See Defendant’s RJN, Ex. B.)

On 5/19/21, Plaintiffs filed a Doe amendment, substituting Amazon.com for Doe 1.

On 7/26/21, Judge Ann Jones granted the request to dismiss, leaving the PAGA cause of action as the sole remaining cause of action.

On 10/8/21, Plaintiffs submitted a second pre-suit PAGA notice to the LWDA, identifying Amazon.com as a named Defendant. (See id. at Ex. A.)

On 4/29/22, Plaintiffs filed the SAC, which asserts a single PAGA cause of action against Green Messengers, Amazon.com, and Amazon Logistics.

PAGA’s limitations period is one year. (See Banke & Segal, supra, at ¶ 1:54.10.) Since Plaintiffs failed to add Amazon.com within one year, Amazon.com contends the Doe amendment is time-barred.

Plaintiffs rely on the “relation back” doctrine. They argue that the Doe amendment relates back to the filing of the initial complaint because they did not learn Amazon.com’s identity until 12/30/20. (See Opposition, pp. 4-5 [stating that Plaintiffs learned Amazon.com’s identity by reviewing the complaint in a case called Sanchez v. Green Messengers, Inc. (5:20-cv-06538-EJD)].)

Amazon.com asserts that the doctrine does not apply because Plaintiffs knew Amazon.com’s identity and facts supporting liability when they filed the initial complaint and the FAC. (See Motion, pp. 9, 11-13 [discussing Plaintiffs’ 10/8/21 second letter to the LWDA].)

The Court agrees with Amazon.com. Plaintiffs’ 10/8/21 second pre-suit PAGA notice states:

. . . Mr. Ibarra and Ms. Nestor were hired by Green Messengers, Inc. to provide package pick-up and delivery services for Amazon. In this role, Amazon directed and controlled all aspects of Mr. Ibarra’s and Ms. Nestor’s employment. For instance, Amazon required Mr. Ibarra and Ms. Nestor to wear a uniform with Amazon’s logo, determined the order for which Mr. Ibarra and Ms. Nestor completed their deliveries, and required them to carry a handheld “Rabbit” device so Amazon could provide instruction, track deliveries and pick-ups, and otherwise communicate with Mr. Ibarra and Ms. Nestor at all times. Amazon also had the power to fire and discipline employees, and in fact, Mr. Ibarra and Ms. Nestor were reprimanded by Amazon’s direct hires on numerous occasions throughout their employment. Mr. Ibarra further believes that he was terminated at the direction of Amazon. Based on the above, Mr. Ibarra and Ms. Nestor allege that Amazon jointly employed Mr. Ibarra, Ms. Nestor, and the aggrieved employees.

(Defendant’s RJN, Ex. A, pp. 1-2.) Plaintiffs undoubtedly knew these facts when they filed the initial complaint and the FAC because, by their own admission, they happened to them personally at some point between April 2017 and October 2019. (See SAC, ¶ 14 [alleging that (1) Ibarra’s employment lasted from April 2017 through 8/14/19, and (2) Nestor started working in September 2017, remains employed to the present, but “has been on a medical leave since October 2019”].) The facts show a level of direction and control sufficient to give Plaintiffs’ knowledge of probable liability. It follows that the “relation back” doctrine is inapplicable.

But another issue needs to be addressed. The PAGA claim arguably is timely as to conduct occurring up to one year before 10/8/21. Plaintiffs might have standing to bring the representative PAGA claim despite the apparent untimeliness of their individual PAGA claims.

Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5^th 924 arguably supports this conclusion. There, Gina Johnson signed a document containing a noncompetition clause. She signed the document on 9/7/16. Almost three years later on 6/19/19, she sent notice to the LWDA of her intent to file a representative PAGA action, claiming the noncompetition clause violated California law. “After 65 days lapsed without a response from the [LWDA],” she filed a lawsuit in San Diego County on 9/9/19. (Johnson, supra, 66 Cal.App.5^th at 927.)

Here, Plaintiffs arguably have standing because they were “aggrieved employees” under PAGA.

This issue is not addressed in the parties’ briefs. The Court is raising it on its own, so it is appropriate to give the parties an opportunity to provide supplemental briefs.

In conclusion, the Court finds that the motion to quash should be granted as to alleged PAGA violations that occurred more than one year before 10/8/21, and the hearing should be continued for supplemental briefing as to alleged PAGA violations that occurred no later than one year before 10/8/21.

[1] “PAGA” means Private Attorneys General Act.

[2] “LWDA” means Labor and Workforce Development Agency.