Judge: Kevin C. Brazile, Case: 21STCV28328, Date: 2024-06-03 Tentative Ruling

Hearing Date: June 3, 2024

Case Name: Pfau v. Riko Wiemer International, LLC, et al.

Case No.: 21STCV27719

Matter: (1) Motion for Reconsideration

(2) Motion to Compel Further Responses

Moving Party: Defendants Riko Weimer International, LLC and Riko Weimer

Responding Party: Plaintiff Jeremy Pfau

Notice: OK

Ruling: The Motion for Reconsideration is denied.

The Motion to Compel is granted in part.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On July 28, 2021, Plaintiff Jeremy Pfau filed the operative Complaint against Defendants Riko Wiemer International, LLC and Riko Wiemer (actually spelled “Weimer”) for (1) violation of Labor Code §§ 1182.12, 1194, 1197, 1197.1, and 1198 (Unpaid Wages); (2) violation of Labor Code §§ 226.7 and 1198 (Failure to Authorize and Permit Rest Periods); (3) violation of Labor Code § 2802 (Unreimbursed Business Expenses); (4) violation of Labor Code §§ 201-202 (Wages Not Timely Paid Upon Termination); (5) violation of Business & Professions Code §§ 17200, et seq., (6) retaliation in violation of Labor Code § 1102.5; and (7) wrongful termination.  Plaintiff alleges he was a piano instructor for Defendants and that he was not paid for all hours worked, not paid for business expenses, and not given rest breaks.  Plaintiff alleges he was terminated for complaining about these issues.

On June 9, 2022, Riko Weimer International, LLC and Riko Weimer filed a First Amended Cross-Complaint (“FACC”) against Pfau for (1) breach of contract, (2) violation of the UCL, (3) constructive fraud, (4) breach of fiduciary duty, (5) breach of the duty of loyalty, and (6) breach of the implied covenant of good faith and fair dealing.  Among other things, Cross-Complainants allege that Pfau improperly competed with their business; failed to give proper notice of his resignation; and failed to return his master key.

1. Motion for Reconsideration

On February 7, 2024, the Court denied the motion for summary adjudication (“MSA”) of Defendants Riko Weimer International, LLC and Riko Weimer as to Plaintiff’s sixth and seventh causes of action for whistleblower retaliation and wrongful termination, as well as the accompanying request for punitive damages. 

Defendants now seek for the Court to reconsider its denial of the MSA because of discovery responses that they obtained in January 2024.  

Code Civ. Proc. § 1008(a) provides, “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.”

Among other things, Defendants point to discovery responses (1) indicating different psychological treatment dates; (2) an email by Plaintiff’s father that discusses “leverage”; and (3) notes by Plaintiff that supposedly show hostility towards Defendants.  Defendants contend this evidence shows that the workers’ compensation exclusivity rule bars this action; that Plaintiff only asserts labor code claims to gain leverage against Defendants; and that there was a legitimate reason to terminate Plaintiff.

Respectfully, none of this purported “new” evidence would change the Court’s ruling that there are triable issues as to whistleblower retaliation and the circumstances surrounding the end of Plaintiff’s employment.  

The Motion is denied.  The Requests for Judicial Notice are granted.

2. Motion to Compel

Defendant Riko Weimer International, LLC seeks to compel further responses from Plaintiff as to its form interrogatories (“FI”), set one.

Plaintiff argues that the Motion is untimely.  The Court previously heard the same discovery dispute.  The initial motion, however, was timely filed, and when the Court denied that motion without prejudice, it entertained the potential for another motion notwithstanding any deadline.  In fact, the Court could have simply continued the initial motion and there would not be an objection under that circumstance.  Defendant should not be penalized because the Court procedurally chose to deny the motion without prejudice rather than to continue it.   

The Motion is denied as to FI no. 3.7 because Plaintiff adequately responded “no”.  

The Motion is denied as to FI no. 6.3 because the description of Plaintiff’s emotional distress is sufficient and further information should have been obtained via a deposition.  

The Motion is denied as to FI no. 6.4 because an adequate response was provided.  

The Motion is granted as to FI no. 6.5 only to the extent that Plaintiff should provide the months for the dates discussed.

The Motion is granted as to FI no. 6.6 only to the extent that Plaintiff should provide the months for the dates discussed.

The Motion is granted as to FI no. 6.7 because Plaintiff did not describe the “nature” of any continuing treatment.

The Motion is denied as to FI no. 8.3 because the response that Plaintiff last worked in November 2020 is sufficient at this time, given the circumstances of this matter.

The Motion is denied as to FI no. 8.4 because Plaintiff sufficiently identified his income and this information should be in Defendants’ records if they actually comply with the Labor Code.

The Motion is denied as to FI nos. 8.5 and 8.6 because Plaintiff sufficiently identified the month when he began self-employment and that he was unemployed for only one month.  

The Motion is granted as to FI no. 8.7 because Plaintiff did not explain how the $72,000 loss of income was calculated.

The Motion is similarly granted as to FI no. 8.8 because the response as to how $100,000 was calculated is too generalized.

The Motion is granted as to FI no. 9.1 because Plaintiff did not provide specificity as to his claim for general damages.

The Motion is denied as to FI no. 9.2 because Plaintiff identifies himself as having relevant documents as to his damages.  The identity of those documents was not an issue for the interrogatory.  

In sum, the Motion to Compel is granted in part as set forth herein.  Further responses are to be provided within 20 days.  Given the mixed results, the Court declines to award sanctions.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.