Judge Lon F. Hurwitz, Case 19-01069273 2023-08-04 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 19-01069273, Date: 2023-08-04 Tentative Ruling

Motion to Consolidate and to Appoint Aegis Law Firm, PC Lead Counsel

MOTION: Motion to Consolidate and Appoint Lead Counsel

Moving Party: Plaintiff Rolando Ferreira

Responding Party: 1. Plaintiffs Keith E. Riley and John Styles; 2. Defendant B. Braun Medical, Inc.; 3. Defendant Manpower US, Inc.

SERVICE: June 12, 2023, by electronic transmission

RELIEF SOUGHT: Related Case Plaintiff Rolando Ferreira moves for an order consolidating Riley v. B. Braun Medical, Inc. with Ferreira v. B. Braun Medical, Inc. for all purposes, and appointing Aegis Law Firm, PC as lead counsel.

UPCOMING EVENTS: Status Conference, 11-15-23

FACTS/OVERVIEW: This is a PAGA-only action. On May 13, 2019, Plaintiffs Keith E. Riley and John Styles, on behalf of themselves and all others similarly situated (“Riley Plaintiffs”), filed a Complaint against Defendants B. Braun Medical, Inc. and staffing company, Manpower US, Inc. alleging several wage-and-hour violations. (ROA 2). On October 7, 2019, pursuant to a stipulation of the parties, the Riley Plaintiffs filed the First Amended Complaint (“FAC”) adding a PAGA claim. (ROA 24). On November 27, 2019, the Riley Plaintiffs dismissed their class action claims without prejudice based on an arbitration agreement they had signed with Manpower. (ROA 32).

On May 27, 2020, Plaintiff Rolando Ferreira, individually and on behalf of all others similarly situated (“Ferreira”), filed his putative Class Action Complaint against Defendant Braun, OCSC Case No. 2020-01141094, alleging several wage-and-hour violations and a claim for unfair competition. (ROA 2, 168). On January 12, 2021, pursuant to a stipulation of the parties, Ferreira filed the First Amended Complaint adding a PAGA claim. (ROA 38).

Ferreira moved to consolidate his action with the Riley action, and he separately moved to intervene. (ROA 85, 103). On October 1, 2021, the Court granted Ferreira’s motion to consolidate, and ordered the Riley action to be consolidated for all purposes with the Ferreira action. (ROA 167). Riley was designated as the lead case. As part of the same order, the Court denied Plaintiff Ferreira’s motion to intervene in the Riley action. (ROA 167, at 2-3). The Court held: “Thus, it is only the State, and not Ferreira, who has an interest in the PAGA claim asserted in Riley, and the State is already represented in the Riley case, so its interests are protected. It does not need Ferreira to intervene to protect it. Because Ferreira cannot demonstrate the requisite interest in this action, his motion [to intervene] must be denied.”

Manpower subsequently moved to compel arbitration of the PAGA claims in the Riley action (ROA 190), and Braun joined in the motion (ROA 214). Although the Riley Plaintiffs did not oppose Manpower’s motion, Ferreira did. Before the hearing, the Riley Plaintiffs, Manpower, and Braun entered into a stipulation wherein the Riley Plaintiffs voluntarily agreed to submit their individual PAGA claims to arbitration. The parties also agreed to stay the representative PAGA claims. The Court signed the Stipulation and proposed Order on December 2, 2022 (ROA 238), and deemed the motion to compel arbitration as moot (ROA 235).

On March 29, 2023, the Court conducted a Status Conference and discussed with counsel the October 2021 ruling consolidating the Riley and Ferreira matters, as well as the December 2022 Stipulation and Order to arbitrate the Riley claims. (ROA 260). After hearing oral argument, the Court ruled that the Riley and Ferreira actions would be deconsolidated. The Court found that the parties in the Ferreira matter were not subject to the December 2022 Order to arbitrate. (Ibid.)

On May 17, 2023, Ferreira filed an ex parte application to re-consolidate the actions and appoint Aegis Law Firm as lead counsel. (ROA 270). Ferreira argued that the Riley Plaintiffs and Defendant were planning to attend mediation in the Riley action without him, and intended to settle class claims “on the cheap.” (Ibid.) Ferreira asserted that the putative class members would suffer irreparable harm if the Court did not re-consolidate the matters. The Court denied the application on the ground that there was “no imminent threat of irreparable harm.” (ROA 273).

On June 12, 2023, Ferreira filed the current Motion to Consolidate and to Appoint Aegis Law Firm, PC Lead Counsel. (ROA 286). The Riley Plaintiffs, Manpower, and Braun separately oppose the motion. (ROA 302, 295, 306). Ferreira has filed an omnibus reply. (ROA 312).

PROCEDURAL ISSUE/ANALYSIS:

Ferreira is seeking an order to re-consolidate the Riley action and the Ferreira action. According to Ferreira, the March 2023 de-consolidation of these actions by the Court has essentially “turned these cases into an active reverse auction to see who can settle valuable class action claims on the cheap at the expense of the class members.” [Motion, 1:4-6.] Ferreira contends the Riley Plaintiffs and Defendants planned to attend mediation on June 13, 2023 “with the intent to settle class claims” in the PAGA-only Riley action. [Motion, 1:7-9.] In addition, Ferreira argues that counsel for the Riley Plaintiffs is actively impeding class-wide settlement discussion in the Ferreira action and attempting to certify and settle a headless class action in order to obtain attorneys’ fees. In addition, Ferreira contends Defendant Braun is refusing to produce basic class discovery, thus preventing Ferreira from prosecuting his class claims. Ferreira argues these “changed circumstances” requires the reconsolidation of the two actions in order to protect the interests of non-exempt employees in both actions.

However, as correctly noted in opposition by the Riley Plaintiffs, Manpower, and Braun, the instant motion should be considered as nothing more than an untimely motion for reconsideration of this Court’s March 29, 2023 ruling. Contrary to Ferreira’s arguments in reply, this Court did rule on the merits of Ferreira’s prior request to re-consolidate these actions and appoint lead counsel.

As a preliminary matter, it is noted in deciding what constitutes a “motion for reconsideration,” the name of the filed motion is not controlling. Any motion that asks the court to decide the same matter previously ruled on can be considered as a motion for reconsideration. (See, e.g., Lennar Homes of Calif., Inc. v. Stephens (2014) 232 Cal.App.4th 673, 681-682; Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.) Here, as discussed below, since Ferreira is asking this Court to once again decide on the issue of re-consolidation of these actions, then the instant motion should be read as a motion for reconsideration.

As discussed above, before de-consolidating these actions on March 29, 2023, this Court heard oral argument and fully considered the parties’ positions as set forth in their March 23, 2023 Joint Post-Mediation Status Conference Report (ROA 243). At that time, the Court noted that the December 2022 Order to arbitrate applied only to the Riley Plaintiffs and their individual PAGA claims.1 The December 2022 Order also stayed the representative claims in both the Riley and Ferreira actions, and noted that the two related Halili v. B. Braun cases (OCSC Case Nos. 2021-01231738 and 2022-01244784) were not affected by the ruling. Because of the significant divergent procedural posture of the Riley and Ferreira actions, the Court ordered them to be de-consolidated.

Code of Civil Procedure section 1008 is the exclusive means for a party to seek to modify, amend, vacate, or otherwise alter court orders through a renewal motion or motion for reconsideration. However, these motions must be based on new or different facts, circumstances, or law and diligence—not that the court misinterpreted the law or failed to consider previously-presented evidence, and not because a party disagreed with the ruling of the court. (Code Civ. Proc., § 1008(a), (b); Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 835.) In addition, since a motion under Section 1008 is a subsequent application for the same order upon new or different facts, circumstances, or law, it must be accompanied by an affidavit showing what application was made before, when and to what judge, and what order was issued or decisions were made. (Code Civ. Proc., § 1008(a), (b); see also, California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 42.)

Here, however, Ferreira has not met the requisites under Section 1008. The instant motion was filed more than 10 days after written notice of the entry of this Court’s March 29, 2023 Order. Ferreira has also failed to demonstrate there are any new or different facts, circumstances, or law that would necessitate reconsideration of the that Order.

Based on the discussion above, the Court must consider Ferreira’s motion as a motion for reconsideration in substance. In that regard, the motion must be denied on the grounds it is untimely and is not based on new or different facts, circumstances, or law.

RULING:

Plaintiff Rolando Ferreira’s Motion to Consolidate and to Appoint Aegis Law Firm, PC Lead Counsel is DENIED. The motion is essentially a motion for reconsideration of this Court’s March 29, 2023 Order de-consolidating Ferreira v. B. Braun Medical, Inc. with Riley v. B. Braun Medical, Inc., et al. The Court finds that Ferriera’s motion for reconsideration is untimely and is not based on new or different facts, circumstances, or law.

Plaintiff Ferreira’s argument that the de-consolidation of the two cases will lead to a reverse auction in which the best interests of the subject class may be compromised is not a “new or different fact or circumstance.” It is a specious argument at best, because it is the Court, not Counsel, that determines what is in the best interests of the Class.

Clerk to give notice of this Court’s ruling.