Judge: Elaine Lu, Case: 22STCV35654, Date: 2025-06-12 Tentative Ruling

Case Number: 22STCV35654    Hearing Date: June 12, 2025    Dept: 9

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 9

Background

            This is a putative wage-and-hour class action.  Plaintiff Luis Gonzalez (“Plaintiff”) alleges that he and the putative class members are and were employed by Defendants Larsen’s Oxnard Grill Inc., Personnel Leasing Inc., Larsen’s Encino Steakhouse LLC, Larsen’s La Jolla Steakhouse Inc., Larsen’s Prime Steakhouse, Inc., and Larsen’s Woodland Hills Steakhouse Inc. (collectively “Defendants”) and that Defendants violated the Labor Code, Industrial Welfare Commission wage orders, and the Business and Professions Code.

On November 10, 2022, Plaintiff filed the instant class action complaint asserting class and representative claims under the Private Attorneys General Act (“PAGA”).  In the complaint, Plaintiff asserts eleven causes of action for: (1) unpaid overtime, (2) unpaid minimum wages, (3) failure to provide meal periods, (4) failure to authorize and permit rest periods, (5) non-compliant wage statements and failure to maintain payroll records, (6) wages not timely paid upon termination, (7) failure to timely pay wages during employment, (8) unreimbursed business expenses, (9) civil penalties under PAGA, (10) unlawful business practices, and (11) unfair business practices.   

On November 15, 2024, Defendants filed a motion seeking to compel Plaintiff’s claims to arbitration pursuant to an Arbitration Policy that Plaintiff signed on October 19, 2019.  Plaintiff filed his opposition on January 30, 2025.  Defendants filed their reply on February 5, 2025.  On February 13, 2025, Defendants filed an amended reply brief and a declaration of Chris Foote which attached a second Arbitration Policy bearing Plaintiff’s signature dated February 2, 2021.  On February 14, 2025, Plaintiff filed written objections to the evidence Defendants submitted in support of their amended reply.  

When asked at the hearing on February 19, 2025 why Defendants had not filed the Arbitration Policy dated February 2, 2021 with their moving papers, Defense Counsel explained that his Clients did not find the second Arbitration Policy, which was dated February 2, 2021, until immediately before Defendants filed it on February 13, 2025, and Defense Counsel was unaware of its existence before then.  At the February 19, 2025 hearing, Defendants requested a continuance of the hearing to allow the Parties to file supplemental briefing regarding the evidence that Defendants had submitted with their amended reply.  The Court was of the view that a new and separate set of moving papers based on the second Arbitration Policy would make for a cleaner record as opposed to supplemental briefing for the then pending motion, which was based on the first Arbitration Policy. The Court thus denied Defendants’ request for a continuance and declined to consider the merits of the evidence that Defendants filed with their amended reply, namely, the second Arbitration Policy bearing Plaintiff’s signature dated February 2, 2021.  In doing so, the Court never intended to preclude ultimate consideration of the second Arbitration Policy on the merits.  The Court heard the Parties’ arguments as to the first Arbitration Policy and took Defendants’ motion to compel arbitration under the first Arbitration Policy under submission.  (Minute Order 2/19/25.) 

On March 21, 2025, the Court denied Defendants’ motion to compel arbitration based on the Arbitration Policy submitted with Defendants’ moving papers (dated October 19, 2019).  (Order 3/21/25.) The Court found that Plaintiff was a minor when he signed the October 19, 2019 Arbitration Policy, and Plaintiff had since validly disaffirmed the Arbitration Policy.  (Order 3/21/25 at pp.10:15-13:6.)  The Court declined to consider Defendants’ untimely reply and sustained Plaintiff’s evidentiary objections to the additional evidence submitted with the reply, namely, the February 13, 2025 declaration by Chris Foote to which Defendants attached a second Arbitration Policy bearing Plaintiff’s signature dated February 2, 2021.  (Order 3/21/25 at pp.2:22-4:25.) 

On May 14, 2025, Defendants filed the instant renewed motion to compel arbitration based on the second Arbitration Policy bearing Plaintiff’s signature dated February 2, 2021.  On May 23, 2025, Plaintiff filed an opposition.  On May 29, 2025, Defendants filed a reply.

Legal Standard for Renewed Motions

A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(CCP § 1008(b).)

As the court in Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499 stated, 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.” There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)

Discussion

Plaintiff opposes Defendants’ renewed motion to compel arbitration on the basis that Defendants have failed to comply with the requirements of Code of Civil Procedure section 1008(b). 

            Any motion seeking the same relief that has been previously denied is a renewed motion subject to Code of Civil Procedure section 1008(b).  (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43 [where two motions for attorney fees sought “identical relief,” the second motion was a motion for “ ‘the same order’ ” under section 1008, subdivision (b)]; accord Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 846.)  “Section 1008 expressly applies to all renewed applications for orders the court has previously refused.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 840.)  For purposes of Code of Civil Procedure section 1008, the term “motion” and “application” are interchangeable.  (Id. at p.833, Fn. 2.)  Under section 1008(b), “[a] party filing a renewed application must, among other things, submit an affidavit showing what “new or different facts, circumstances, or law are claimed” (id., subd. (b)) to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier[.]”  (Even Zohar Construction & Remodeling, Inc., supra, 61 Cal.4th at p.833 [bold added].)  Pursuant to section 1008(b), “[a] party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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.”  (CCP § 1008(b) [bold added].)   

Here, the Court inquired at the February 19, 2025 hearing why Defendants had not filed the Arbitration Policy dated February 2, 2021 with their moving papers.  Defense Counsel explained that his Clients did not find the second Arbitration Policy, which was dated February 2, 2021, until immediately before Defendants filed it on February 13, 2025, and Defense Counsel was unaware of its existence before then.  At the February 19, 2025 hearing, Defendants requested a continuance of the hearing to allow the Parties to file supplemental briefing regarding the evidence that Defendants had submitted with their amended reply.  The Court was of the view that a new and separate set of moving papers based on the second Arbitration Policy would make for a cleaner record as opposed to supplemental briefing for the then pending motion, which was based on the first Arbitration Policy. The Court thus denied Defendants’ request for a continuance and declined to consider the merits of the evidence that Defendants filed with their amended reply, namely, the second Arbitration Policy bearing Plaintiff’s signature dated February 2, 2021.  In doing so, the Court never intended to preclude any and all consideration of the second Arbitration Policy on the merits. 

Though Defense Counsel argued at the February 19, 2025 hearing that their Clients, Defendants, did not find the second Arbitration Policy, which was dated February 2, 2021, until immediately before Defendants filed it on February 13, 2025, Defendants have never filed any  declaration in this regard.  Defendants are ordered to do so by June 20, 2025.

            Provided that Defendants file such declaration by June 20, 2025, the Court is inclined to consider the instant motion on the merits, and the Court will continue the hearing on the instant motion to compel allow the parties to file supplemental briefing. 

A continuance is also necessary for the separate and independent reason that the parties have inadequately briefed various issues.

            First, Plaintiff’s opposition cites to an unspecified Declaration of Luis Gonzalez.  However, Plaintiff has never filed a Declaration of Luis Gonzalez in support of his opposition.  The only Gonzalez declaration in the record is the Gonzalez declaration filed on January 30, 2025 in support of Plaintiff’s opposition to Defendants’ first motion to compel arbitration under the first Arbitration Policy.  If Plaintiff is relying on this declaration that is directed at the first Arbitration Policy, Plaintiff’s supplemental opposition must clearly and unequivocally denote as such.  If Plaintiff is relying on a declaration not currently part of the Court’s record, Plaintiff must file the new Gonzalez declaration upon which Plaintiff is relying.

            Second, Defendants’ moving papers and reply papers are inconsistent in the relief sought.  Defendants’ moving papers indicate that Defendants seek to “order Plaintiff to arbitrate all of his individual PAGA claims against Defendants pursuant to the [second Arbitration Policy], and furthermore stay the remaining non-individual PAGA claims until resolution of arbitration.”  (Defendants’ Moving Memorandum at p.19:22-25.)  By contrast, Defendants’ reply papers assert that “all of Plaintiff’s claims, including the class and non-individual PAGA claims should be ordered to Arbitration.”  (Reply at p.8:8-9.)  Due to this inconsistency in the moving and reply papers, it is unclear whether Defendants seek class and representative arbitration or just arbitration on an individual basis.  In Defendants’ supplemental reply, Defendants must clearly denote whether they seek class and representative arbitration or just individual arbitration.

            Third, the language of the second Arbitration Policy seems to indicate that it may require arbitration of class claims.  (Schanafelt Decl. ¶ 15, Exh. A [“This arbitration policy signed and agreed to by these Companies and the listed employee has and at all times is inclusive of any joint legal or administrative actions inclusive of but not limited to any and all Class Action law Suits.”].)  However, neither party has addressed whether they believe this language requires arbitration of representative claims such as the non-individual portion of Plaintiff’s PAGA claim.  Accordingly, the parties’ supplemental briefs should address whether the respective party contends that the language of the second Arbitration Policy requires arbitration of representative claims – such as the non-individual portion of Plaintiff’s PAGA claim – or requires that the representative portions of such claims be stayed pending arbitration.

            Fourth, though the Court makes no finding at this time as to whether there is a valid clause delegating both arbitrability as to the scope of claims and as to whether the second Arbitration Policy is enforceable, if the Court finds that there is no such delegation clause, the parties’ briefing regarding substantive unconscionability is insufficient.  Plaintiff’s opposition asserts that the second Arbitration Policy (1) fails to permit all relief and remedies that would be available to Plaintiff in court, (2) requires Plaintiff to pay unreasonable costs and any arbitrators’ fees, and expenses, (3) requires Plaintiff to pay for Defendants’ fees in bringing the instant motion, and (4) is unconscionable for specifying that the Commercial Arbitration Rules of the AAA apply.  Defendants’ reply addresses only Plaintiff’s substantive unconscionability argument regarding arbitration expenses. 

            For each portion of the second Arbitration Policy that Plaintiff contends is unconscionable, Plaintiff must identify the specific language that renders the second Arbitration Policy unconscionable and explain why such language renders the second Arbitration Policy unconscionable.  As to Plaintiff’s contention that the incorporation of the Commercial Arbitration Rules of the AAA makes the second Arbitration Policy unconscionable, Plaintiff asserts that there are “various factors” as to why the incorporation of the Commercial Arbitration Rules of the AAA makes the second Arbitration Policy substantively unconscionable. However, the only factor that Plaintiff points to is the limitation on discovery.  If there are other reasons why Plaintiff contends the incorporation of the Commercial Arbitration Rules of the AAA makes the second Arbitration Policy substantively unconscionable, Plaintiff’s supplemental opposition must set forth such reasons.

            In supplemental reply, Defendants must address each of Plaintiff’s arguments why the second Arbitration Policy is substantively unconscionable.  If Defendants contend that severance is necessary, Defendants’ supplemental reply must address why severance is appropriate and what specific clauses the Court should strike or limit to avoid an unconscionable result.   

            Finally, the Court reminds the parties that their briefs must properly cite cases.  For example, in the reply, Defendants cite Jarboe v. Hanlees Auto Group (2020) 53 Cal.App.5th 539, for the proposition that “‘[w]hen a motion to compel arbitration is denied without prejudice, the denial is not a final ruling on the merits and does not preclude a later motion based on different or additional evidence.’ Jarboe v. Hanlees Auto Group (2020) 53 Cal.App.5th 539, 549.”  (Reply at p.3:19-21.)  The claimed citation does not exist in Jarboe.  Jarboe did not even involve two motions to compel arbitration, each based on a different arbitration agreement.  It is unclear where the quotation in Defendants’ reply brief derives from as such language does not appear anywhere in the cited Jarboe decision.

Mediation Efforts

The Court has reviewed the Joint Status Report re mediation efforts filed on June 5, 2025.

In their Joint Status Report, the parties indicate that they previously attended private mediation on July 24, 2024, but were unable to reach a resolution of the matter. While the Parties have agreed to attend a further private mediation, they are still in the process of discussing the scope of mediation and agreeing to a mediator and date for mediation. Additionally, the Parties are conducting further discovery prior to attending mediation including, without limitation, additional document production, Plaintiff’s deposition, and a PMQ deposition. 

By no later than August 27, 2025, the parties must file a further Joint Status Report re mediation efforts, including the date of any scheduled further mediation and the name of any stipulated mediator.

The status conference re mediation efforts is continued to September 4, 2025 at 10:00 am in Department 9 at the Spring Street Courthouse.

CONCLUSION AND ORDER

Based on the foregoing, Defendants Larsen’s Oxnard Grill Inc., Personnel Leasing Inc., Larsen’s Encino Steakhouse LLC, Larsen’s La Jolla Steakhouse Inc., Larsen’s Prime Steakhouse, Inc., and Larsen’s Woodland Hills Steakhouse Inc.’s renewed motion to compel arbitration is CONTINUED to September 4, 2025 at 10:00 am.

Defendants are ordered to file and serve by no later than June 25, 2025 a declaration setting forth why the second Arbitration Policy was not included with the moving papers for the first motion to compel arbitration.

Plaintiff may file a supplemental opposition memorandum (not to exceed 10 pages) and supplemental evidence (of any page length) addressing the issues noted above by no later than August 6, 2025.

Defendants may filed a supplemental reply (not to exceed 10 pages) addressing the issues noted above by no later than August 20, 2025.

By no later than August 27, 2025, the parties must file a further Joint Status Report re mediation efforts, including the date of any scheduled further mediation and the name of any stipulated mediator.

The status conference re mediation efforts is continued to September 4, 2025 at 10:00 am in Department 9 at the Spring Street Courthouse.

The Judicial Assistant shall give notice to Defendants, and Defendants are ordered to file proof of service of the instant order on all other parties within 5 days.

DATED: June 12, 2025                                                          _____________________________

                                                                                                  Elaine Lu

                                                                                                  Judge of the Superior Court