Judge: David S. Cunningham, Case: BC677389, Date: 2022-07-29 Tentative Ruling

Case Number: BC677389    Hearing Date: July 29, 2022    Dept: 11

BC677389 (Ortega)

Tentative Ruling Re: Motion for Reconsideration

Date:                           7/29/22

Time:                          10:30 am

Moving Party:           Jasmin Ortega and Julieta Hernandez  (jointly “Plaintiffs”)

Opposing Party:        Carson Wild Wings, LLC (“CWW”), Baldwin Hills Wild Wings, LLC (“BHWW”), Torrance Wild Wings, LLC (“TWW”), Koreatown Wild Wings, LLC (“KWW”), PCF Restaurant Management, LLC (“PCF”) (jointly “Defendants”)

Department:              11

Judge:                        David S. Cunningham III

________________________________________________________________________

TENTATIVE RULING

Plaintiffs’ motion for reconsideration is denied.

BACKGROUND

Plaintiffs are former CWW employees.  They allege “wage and hour” class claims regarding meal breaks, rest breaks, overtime wages, reporting time pay, wage statements, and separation pay.

Plaintiffs allege that the class members are current and former non-exempt, hourly employees of CWW, BHWW, TWW, and KWW.

PCH provides “payroll, administration, and human resources consulting” for CWW, BHWW, TWW, and KWW and is an alleged joint employer of the putative class members.

At the hearing on class certification,

[t]he Court certifie[d] “meal break” and “rest break” issue classes to resolve two predominating common legal questions:

* whether the written meal break policy in the July 2015 employee handbook complied with California law; and

* whether Defendants’ unwritten rest break policy complied with California law.

(5/12/22 Tentative Ruling RE: Motion for Class Certification, p. 1.) 

The Court also found the Wage Statement Class and the 17200 Class “derivative” and “certifie[d]” them “as issue classes to the same extent as the ‘meal break’ and ‘rest break’ issue classes.”  (Ibid.)

“The Court exclude[d] TWW’s and KWW’s non-exempt, hourly employees from the issue classes because Plaintiffs’ evidence fail[ed] to show that the subject polices applied to them during the class period.”  (Ibid.)

Here, Plaintiffs move for reconsideration, arguing that TWW’s non-exempt, hourly employees should be included in the issue classes because TWW is the new name of the company that employed them when the July 2015 employee handbook applied.

LAW

Code of Civil Procedure section 1008 provides:

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(Code Civ. Proc. § 1008, subd. (a).)

DISCUSSION

Timeliness

The Court decided Plaintiffs’ certification motion on 5/12/22.  The Court adopted the tentative ruling and issued a minute order that day, deeming notice waived.  (See 5/12/22 Minute Order, pp. 1-3.)  The Court ordered Plaintiff’s counsel “to submit a proposed order compliant with the court’s ruling.”  (Id. at p. 2.)

Defendants contend the motion for reconsideration is untimely because “Plaintiffs waited 21 days to serve the draft order following the” 5/12/22 hearing in violation of Rule of Court 3.1312, which “requires a party to serve a draft order . . . within five days” after the hearing.  (Opposition, p. 4.)

Plaintiffs argue that the motion is timely because “the Court has yet to enter an order” on the certification motion.  (Reply, p. 3.)

“Unless the court orders otherwise or notice is waived, the prevailing party must, within 5 days after the ruling, serve a proposed order on opposing counsel by means authorized by law and reasonably calculated to ensure delivery by the close of the next business day, without any extension of time based on the manner of service.”  (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 9:294 [discussing Rule of Court 3.1312(a)], emphasis in original.)

“Opposing counsel then has 5 days after service (again, without any extension of time based on the manner of service) to notify the prevailing party's counsel of any objections to the proposed order, stating the reasons for its objections.”  (Ibid.) 

“Upon expiration of the 5-day period for approval by opposing counsel, the prevailing party must deliver the proposed order to the court together with a summary of any responses by other parties or a statement that no responses were received.”  (Id. at ¶ 9:318.) 

“The prevailing party must then promptly transmit the proposed order to the court, together with a summary of any responses received from opposing counsel or a statement that no responses were received.”  (Ibid.)

“If the prevailing party fails to prepare and submit the order as above provided [citation], any other party may do so.”  (Id. at ¶ 9:319.)

“Once the order is entered, unless the court orders otherwise, the prevailing party must prepare a notice of the court's ruling and serve it on all other parties or their attorneys — unless they were present at the hearing and waived notice.”  (Id. at ¶ 9:320.)

“A formal notice of ruling [citation] is required to set the time limit running on a motion for reconsideration” under Code of Civil Procedure section 1008.  (Weil & Brown, supra, at ¶ 9:325.)  “The 10-day time limit runs from service of notice of entry of the order.”  (Ibid., emphasis in original.)

To reiterate, the Court ordered Plaintiff’s counsel to prepare a proposed order and deemed notice waived.  (See 5/12/22 Minute Order, pp. 1-3.)  Since the Court affirmatively ordered counsel to prepare a proposed order, the overall effect was to trigger Rule of Court 3.1312(a)’s 5-day requirement, which counsel clearly failed to satisfy.

Counsel’s failure opened the door for Defendants to draft an order and submit it to the Court (see Weil & Brown, supra, at ¶ 9:319), but they did not.

Notably, neither side cites authority holding that failure to satisfy the 5-day requirement starts section 1008’s 10-day time limit.

Plaintiffs eventually e-served a proposed order in early June 2022, and the Court signed it on 6/17/22.  (See 6/1722 Order on Plaintiffs’ Motion for Class Certification Following Class Certification Hearing, pp. 1-3.)

Plaintiffs sought reconsideration on 6/7/22, before the Court signed the certification order, so the motion appears timely despite counsel’s failure to comply with Rule of Court 3.1312(a).

New or Different Facts or Circumstances

The issue classes concern, in part, “whether the written meal break policy in the July 2015 employee handbook complied with California law[.]  (5/12/22 Tentative Ruling Re: Motion for Class Certification, p. 1.)

As noted above, “[t]he Court exclude[d] TWW’s and KWW’s non-exempt, hourly employees from the issue classes because Plaintiffs’ evidence fail[ed] to show that the subject polices applied to them during the class period.”  (Ibid.)

Relevantly, the July 2015 employee handbook did cover BRW Wings, LLC (“BRW”) employees.

Plaintiffs assert that the Court should grant reconsideration because the BRW employees and the excluded TWW employees are one and the same.  The new or different fact or circumstance, according to Plaintiffs, is that BRW changed its name to TWW on 2/26/19.  (See Motion, p. 3; see also Reply, pp. 4-6.)

Defendants disagree.  They claim this information “has been publicly available since” 2/26/19 and was included in TWW’s 1/14/20 responses to form interrogatories.  (See Opposition, pp. 5-6.)

“The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.”  (Weil & Brown, supra, at ¶ 9:328, emphasis in original.)

“The burden . . . is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.”  (Ibid., emphasis in original.)

“A party seeking reconsideration of a prior order based on ‘new or different facts, circumstances or law’ must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence.”  (Id. at ¶ 9:329, emphasis in original.)

The Court agrees with Defendants because: 

* Plaintiffs filed the certification motion on 7/20/21. 

* The name change took place more than two years earlier.

* Plaintiffs had the discovery responses more than a year and a half prior to the filing date. 

* Plaintiffs’ explanation for the delay – it was unnecessary to prove that BRW and TWW are one and the same because the “fact” is undisputed and was not at issue in the certification motion (see, e.g., Reply, pp. 5-6) – is unavailing and fails to show due diligence.  Defendants objected to Plaintiffs’ evidence and expressly did not concede the “fact” at the certification hearing.  Plaintiffs possessed the information well before the filing date and the hearing, had the burden to prove certification as to all employees, but assumed facts, presented inadmissible evidence, and failed to meet their burden. 

Consequently, the Court finds that the motion for reconsideration should be denied under section 1008.

Section 1008 “does not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.”  (Weil & Brown, supra, at ¶ 9:327.)  “The court must act on its own motion, either as the result of its own second thoughts or in response to a party's request[.]”  (Id. at ¶ 9:327.5.)  “Thus, in spite of the fact that a motion to reconsider is filed in violation of [section] 1008, the court has inherent power to correct its own errors when they are called to the court's attention by way of an improperly filed motion.”  (Ibid.)

“To grant reconsideration on its own motion, the trial court must conclude its earlier ruling was wrong ‘based on the evidence originally submitted,’ not based on new evidence.”  (Id. at ¶ 9:327.5a, emphasis in original.)

To the extent Plaintiffs ask the Court to reconsider sua sponte, the motion is denied given that the Court found Plaintiffs’ original evidence either inadmissible or insufficient to show that TWW used to be BRW.