Judge Edward B. Moreton, Jr., Case Number: 22STCV35085, Date: 2023-09-19 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 22STCV35085, Date: 2023-09-19 Tentative Ruling

Case Number: 22STCV35085 Hearing Date: January 8, 2024 Dept: 205

[TENTATIVE] ORDER RE: PLAINTIFF AURICE VELOSO’S MOTION FOR RECONSIDERATION

BACKGROUND

This case arises from claims of discrimination, harassment, and retaliation. Plaintiff Aurice Veloso was employed by Defendant Leo David as a caregiver for his wife. Plaintiff alleges that David asked her to sleep with him in exchange for improved working conditions and other financial incentives including a house, car and tuition. David also allegedly made offensive remarks about Plaintiff’s menstrual period, personal hygiene and sexual activity. Plaintiff further alleges that despite her working around the clock, she was not compensated for overtime or provided rest and meal breaks. David then terminated Plaintiff when she opposed his alleged discrimination and harassment.

Defendant paid Plaintiff’s wages through various companies he owned, including XCVI, LLC (“XCVI”), Construction for Less, Inc. (CFL), AMLease Corporation, and Tri-Net HR II, Inc.. Plaintiff is suing these corporate defendants as “joint employers.” Plaintiff alleges these corporate defendants ratified and adopted the conduct of David.

The operative complaint alleges claims for: (1) violations of the Fair Employment and Housing Act (“FEHA”); (2) wrongful termination in violation of public policy; (3) violation of Labor Code Section 1102.5; (4) violations of California Wage & Hour Laws and Regulations; (5) assault and battery; (6) breach of oral and implied contract; (7) false promise/intentional misrepresentation; (8) promissory estoppel, (9) violations of Business and Professions Code Section 17200, and (10) unjust enrichment.

On November 21, 2023, the Court sustained a demurrer as to the FEHA claims against the corporate defendants XCVI and CFL, concluding that Plaintiff had failed to exhaust her administrative remedies for failure to provide sufficient factual details in her complaint to the Department of Fair Employment and Housing (“DFEH”).

Plaintiff now seeks reconsideration of the Court’s November 21, 2023 ruling. Plaintiff bases her motion on a DFEH complaint she filed on October 26, 2023, after the Court took the corporate defendants’ demurrer under submission, and the Court’s tentative ruling (on a separate demurrer filed by David) that the new complaint exhausts Plaintiff’s administrative remedies. The Court’s final order did not include this conclusion. Plaintiff argues that absent reconsideration, there will be an inconsistency in the Court’s rulings.

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests judicial notice of her DFEH administrative charge filed October 26, 2023. The Court grants the request pursuant to Cal. Evid. Code §§ 452(c) and 453.

Defendants request judicial notice of (1) the Court’s May 23, 2023 Minute Order sustaining XCVI and CFL’s demurrer to the original complaint, (2) Nancy Abrolat’s November 1, 2023 declaration, (3) Veloso’s November 1, 2023 declaration, (4) the online complaint form from the Civil Rights Division (“CRD”), (5) a printable intake form from the CRD’s website, (6) the Court’s November 15, 2023 sustaining David’s demurrer to Veloso’s FEHA Claims, and (7)

the Court’s November 21, 2023 minute order sustaining XCVI and CFL’s demurrer to Veloso’s FEHA claims. The Court grants the request pursuant to Cal. Evid. Code §§ 452(c), 452(d) and 453.

EVIDENTIARY OBJECTIONS

The Court overrules XCVI and CFL’s evidentiary objections to the Declaration of Nancy Abrolat.

LEGAL STANDARD Pursuant to Code Civ. Proc. §1008(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 of Civ. Proc., §1008(a).)

A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” (Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499.) There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence, different facts, or law earlier. (Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690.) A motion for reconsideration is properly denied when it is based on evidence that could have been presented in connection with the original motion. (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460; Hennigan v. White (2011) 199 Cal.App.4th 395, 406.)

DISCUSSION

Veloso’s motion for reconsideration is not based on any new or different facts, circumstances or law. Veloso argues that her third amended administrative complaint filed with

the DFEH on October 26, 2023 is a new fact. But this complaint was made before the Court’s November 21, 2023 ruling and was presented to the Court (in opposition to David’s demurrer) on November 1, 2023. Thus, it cannot be a “new” fact or circumstance.

Veloso cites the Court’s tentative ruling on David’s demurrer dated November 15, 2023 as another basis for reconsideration. But the Court issued a subsequent minute order that did not adopt this tentative ruling. In any event, the tentative ruling is not a new fact or circumstance as it was also issued on November 15, 2023, six days before the Court’s November 21, 2023 minute order.

Veloso argues that reconsideration is necessary to avoid “inconsistent application of law within the same case” between (1) the Court’s November 15, 2023 tentative ruling dismissing the FEHA claims against David, which found that Veloso did exhaust her administrative remedies, and (2) the Court’s November 21, 2023 minute order dismissing the FEHA claims against the corporate defendants which found that Veloso did not exhaust her administrative remedies. But there is no inconsistency. The Court’s tentative ruling did not become the Court’s final order. Instead, the Court’s minute order (also dated November 15) stated that “[b]ecause the Court finds that Plaintiff has not sufficiently pled that FEHA applies to David, it does not reach Defendant’s argument that Plaintiff failed to exhaust her administrative remedies.” There is no inconsistency between this final November 15 order and the subsequent November 21 order which concluded that Veloso failed to exhaust her administrative remedies.

CONCLUSION

Based on the foregoing, the Court DENIES Veloso’s motion for reconsideration.

IT IS SO ORDERED.

DATED: January 8, 2024