Judge Gregory Keosian, Case BC687180 2023-03-20 Tentative Ruling

Defendant Landcare USA, LLC (Defendant) moves to strike Plaintiff Ismael Cortez’s PAGA complaint on the grounds that the claim is unmanageable.

This court heard a similar motion filed by Defendant January 30, 2019. In its tentative decision, the court indicated that the motion would be denied, but took the motion under submission, and following the granting of Plaintiff’s motion to disqualify and subsequent appeal, no ruling was ultimately entered. Defendant filed another motion to sequence discovery based on manageability concerns on November 2, 2021, which this court granted, based on new case authority that Defendant presented, indicating that PAGA claims were subject to dismissal for unmanageability, just as class actions were. (See Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5^th 746.) The court accordingly ordered that trial and discovery in this matter be phased, to first address the Canoga Park facility where Plaintiff worked, and to evaluate the manageability of Plaintiff’s statewide claims in the light of this prior, localized stage of trial.

Defendant now moves to strike Plaintiff’s claims outright, again on the grounds of manageability. Defendant argues that Plaintiff has not submitted a list of expert witnesses, meaning that Plaintiff will not be able to rely upon statistical sampling to make his case. (Motion at p. 14.) And Defendant further argues that the joint witness list includes 82 aggrieved employees, indicating that trial of Plaintiff’s claims will require a mini-trial as to each employee. (Motion at p. 11, Exh. F.)

Defendant has not shown that trial in this matter, on the phased schedule already arranged, will be unmanageable. When this court previously ordered discovery sequenced, Plaintiff’s claim for the manageability of his claims was not premised upon expert testimony regarding statistical samples, but upon the contention that his claims for rest-break and off-the-clock violations could be proven by reference to an informal policy, such as by comparing GPS data to employee time records, and by eliciting evidence of Defendant requiring employees to take rest breaks while in transit to and from work-sites.

Plaintiff in opposition to the present motion reiterates that his theory at trial shall be that Defendant has a policy of using predetermined times on time-cards that do not accurately reflect the hours worked, and that Defendant required employees to take their rest breaks while traveling between jobs. (Opposition at pp. 4–5.) Defendant leans heavily upon its written policies to discount such assertions (Reply at p. 2), but claims of a pervasive and informal policy may be proved by means other than a written declaration under company letterhead, or by the individual testimony of every employee affected. Plaintiff indeed does not anticipate calling each witness listed in the joint witness list (Bechtel Decl. ¶¶ 7–9), and in any event, the witnesses and time estimated for each are vastly less than the times at issue in Wesson, which involved 346 aggrieved employees and six days of trial for each, for a total estimated trial length of eight years. (Wesson, supra, 68 Cal.App.5^th at p. 758.)[1] The upcoming trial harbors no such dangers.

Defendant has obtained the sequencing of trial that it requested. That is sufficient for the present to address its manageability concerns.

[1] The Wesson holding has since been called into doubt. In Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5^th 685, the Fourth District disagreed with Wesson’s holding that PAGA claims were subject to dismissal for being unmanageable, reasoning that, PAGA claims were not subject to class certification, and thus, unlike class actions, “unmanageability” could not be asserted as a reason to deny a PAGA claim. “Allowing dismissal of unmanageable PAGA claims would effectively graft a class action requirement onto PAGA claims, undermining a core principle of these authorities. It would also interfere with PAGA's purpose as a law enforcement mechanism by placing an extra hurdle on PAGA plaintiffs that is not placed on the state.” (Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, 697.) The California Supreme Court has granted review of the Estrada opinion, meaning that the opinion can be cited as persuasive (not mandatory) authority, and also to establish “the existence of a conflict in authority that would in turn allow trial courts to exercise discretion . . . to choose between sides of any such conflict.” (Estrada v. Royalty Carpet Mills (Cal. 2022) 294 Cal.Rptr.3d 460.)