Judge: Elaine Lu, Case: 24STCV23533, Date: 2025-04-24 Tentative Ruling
Case Number: 24STCV23533 Hearing Date: April 24, 2025 Dept: 9
This
is a putative wage-and-hour class action.
Plaintiff James Foust (“Plaintiff”) alleges that he and the putative
class members are and were employed by Defendants Statewide Traffic Safety and
Signs, Inc. d/b/a AWP Safety (“Statewide”) and George Bullock (“Bullock”)
(jointly “Defendants”) and that Defendants violated the Labor Code, Industrial
Welfare Commission wage orders, and the Business and Professions Code.
On
September 11, 2024, Plaintiff filed the instant class action complaint. On January 15, 2025, Plaintiff filed the
operative First Amended Complaint (“FAC”) asserting class and representative
claims under the Private Attorneys General Act (“PAGA”). In the FAC, Plaintiff asserts ten causes of
action for (1) failure to provide required meal periods, (2) failure to provide
required rest periods, (3) failure to provide to pay overtime wages, (4)
failure to pay wages for all hours worked, (5) failure to furnish timely and
accurate itemized wage statements, (6) failure to pay all wages due to
discharged and quitting employees, (7) failure to maintain required records,
(8) failure to reimburse employees for work related expenses, (9) unfair and
unlawful business practices, and (10) civil penalties under PAGA. On February 24, 2025, Plaintiff filed an
amendment to the complaint correcting Defendant AWP, Inc. d/b/a AWP Safety to Statewide
Traffic Safety and Signs, Inc. d/b/a AWP Safety.
On February
25, 2025, Defendants filed the instant motion to compel arbitration. On April
4, 2025, Plaintiff filed an opposition.
On April 17, 2025, Defendants filed a reply.
Untimely
Reply
“Unless otherwise ordered or specifically
provided by law … All papers opposing a motion so noticed shall be filed with
the court and a copy served on each party at least nine court days, and all
reply papers at least five court days before the hearing.” (CCP § 1005(b) [underline added].) This is calculated by counting backwards from
the hearing date and excluding holidays and weekends. (CCP §§ 12-12(c).) The court may refuse to consider a late-filed
paper. (Cal. Rules of Court, Rule
3.1300(d).)
Here, the Court’s Case Management Order required the
parties to contact Court Staff in this Department to obtain a hearing date and
a briefing schedule. (Case Management
Order filed 1/24/25, [“Before filing any demurrer or other motion, the moving
party must contact the Court Staff in Department 9 to obtain a hearing date and
a briefing schedule.”].) Defendants
obtained a briefing schedule requiring any opposition to be filed by April 4,
2025 and any reply to be filed by April 10, 2025. However, Defendants failed to comply with the
Court ordered briefing schedule. Instead,
Defendant filed the reply on April 17, 2025 – seven calendar days after the
reply was due in accordance with the Court ordered briefing schedule. Accordingly, the reply is untimely.
Reply
Evidence
In general, for due process reasons, the moving
party generally may not rely on additional evidence filed with its reply
papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002)
102 Cal.App.4th 308, 316.) Evidence
filed for the first time in a reply may violate the opposing party’s due
process rights if considered by the Court.
(Ibid.) Thus, evidence and
exhibits presented in support of a reply are not generally allowed. (Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 249.)
In the moving papers, Defendants assert that
Plaintiff’s claims are subject to a Collective Bargaining Agreement. (Riazzi Decl. ¶ 6, Exh. A.) However, in the untimely reply, Defendants
concede that they have attached the wrong Collective Bargaining Agreement. (Reply at pp.1-2 Fn. 1 [“Defendants’ moving
papers inadvertently affixed the incorrect collective bargaining agreement.
Specifically, the collective bargaining agreement applicable to when the
Associated General Contractors of California were Statewide’s representative
was attached.”]; Supp. Riazzi Decl. ¶ 12 [“My declaration made in support of
Defendant's motion to compel arbitration in this matter inadvertently affixed
the incorrect collective bargaining agreement.”].) To rectify this error, Defendants filed a
supplemental declaration of Deborah Riazzi in support of the reply containing
the correct Collective Bargaining Agreement that Defendants assert is applicable
to Plaintiff’s claims and evidence as to why Plaintiff is bound to this
Collective Bargaining Agreement. (See
generally, Supp. Riazzi Decl.)
Because Defendants failed to provide the allegedly
applicable Collective Bargaining Agreement until the reply papers, due process
requires that Plaintiff be provided the opportunity to fully respond and oppose
such claims. (Jay v.
Mahaffey (2013) 218 Cal.App.4th 1522, 1538 [“[I]f [reply evidence is]
permitted, the other party should be given the opportunity to respond.”].)
Accordingly,
to eliminate any prejudice to Plaintiff, the instant motion to compel
arbitration filed on February 25, 2025 is TAKEN OFF CALENDAR. This is without prejudice for Defendants
to file a new motion to compel arbitration based on the correct arbitration
agreement.
Defendants
are ordered to file either a new motion to compel arbitration with the correct
arbitration agreement or a responsive pleading by May 8, 2025.
A
Nonappearance Case Review Re: Filing of a Motion to Compel Arbitration or
Responsive Pleading is set for May 15, 2025 at 8:30 am.
Defendants
are to give notice and file proof of service of such.