Judge: Marcella O. Mclaughlin, Case: 37-2019-00059318-CU-WT-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 16, 2023

11/17/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2019-00059318-CU-WT-CTL AL-GARAAWI VS. THE VONS COMPANIES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Augment Expert Witness List, 09/12/2023

A. Vons' motion for judgment on the pleadings is DENIED.

'A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute.' Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113. However, '[t]aking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.' Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374. 'The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.' Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605. With these principles in mind, the court rules on the parties' requests for judicial notice (ROA 267, 316, 318) as follows: The requests are granted as to the court records in this case, the Leyette case, and the McCarthy case.

Evid. Code§ 452(d). The requests are likewise granted as to the CBA, plaintiff's grievance, and plaintiff's LWDA letter. Evid. Code § 452(c), (h).

The requests are otherwise denied. '[D]iscovery responses...are not a proper matter for judicial notice.' TSMC North America v. Semiconductor Manufacturing Internat. Corp. (2008) 161 Cal.App.4th 581, 594 fn. 4. Nor are deposition answers. See Silguero v. Creteguard, Inc. (2010) 187 Cal.App.4th 60, 64. In addition, '[t]he existence and terms of a private agreement are not facts that are not reasonably subject to dispute and that can be determined by indisputable accuracy.' Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance Company (2021) 70 Cal.App.5th 341, 354-55.

Turning to the merits, '[t]he standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.' Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.

In this case, the court is unable to conclude on this limited record that the PAGA claim is preempted by the National Labor Relations Act or the Labor Management Relations Act. While plaintiff alleges that he declined to sign a grievance settlement offered to him by the Union, his PAGA retaliation claim is not based on such activity. (Compare SAC at ¶ 26, with id. at ¶ 79.) Nor is plaintiff's PAGA wage statement claim based on the contention that he was not paid the proper rate under the CBA. The fact that plaintiff may have articulated these theories in discovery is irrelevant for purposes of a motion for judgment on Calendar No.: Event ID:  TENTATIVE RULINGS

3036796  61 CASE NUMBER: CASE TITLE:  AL-GARAAWI VS. THE VONS COMPANIES INC [IMAGED]  37-2019-00059318-CU-WT-CTL the pleadings. See Alameda County Waste Management Authority v. Waste Connections US, Inc.

(2021) 67 Cal.App.5th 1162, 1174 ('[A] motion for judgment on the pleadings attacks defects disclosed on the face of the pleadings or by matters that may be judicially noticed.').

For similar reasons, the court is unable to conclude that res judicata bars the PAGA claim as a matter of law. The doctrine of res judicata has two distinct aspects: claim preclusion and issue preclusion. City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 227. However, '[b]oth doctrines require a final judgment.' Riverside County Transportation Commission v. Southern California Gas Company (2020) 54 Cal.App.5th 823, 838. Here, none of the judicially noticed materials suggest that a final judgment has been entered in Leytte. To the contrary, it appears that the demurrer ruling in Leyette has been appealed. (See Reply RJN Ex. 1.) 'In California, a judgment is not final for purposes of res judicata or collateral estoppel if an appeal is pending or could still be taken.' Riverside County, 54 Cal.App.5th at 838.

Finally, sufficient facts have been pled showing that plaintiff complied with PAGA's pre-filing notice requirements under Labor Code section 2699.3. (FAC at ¶ 76.) Whether the notice letter encompasses plaintiff's new theories of liability – which are not alleged in the SAC – remains to be determined.

B. Plaintiff's motion to augment expert witness list is GRANTED.

Plaintiff has met his burden of demonstrating all of the conditions set forth in Code of Civil Procedure section 2034.620. Specifically, the evidence before the court shows that the failure to include Dr.

Anthony Reading in the first expert designation was due to counsel's mistake and/or excusable neglect.

(Hamblet Decl., ¶ 2.) In addition, plaintiff moved promptly to seek relief by filing an ex parte application just weeks after discovering the mistake. He has also served Dr. Reading's information on defense counsel. (See Hamblet Decl., Ex. 2.) Finally, defendants have failed to establish that they will be prejudiced in their defense of the case as the trial date was recently vacated. See ROA 301. 'A party is not 'prejudiced' simply because the new expert will give testimony adverse to the party.' Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1479.

Plaintiff is directed to make Dr. Reading immediately available for deposition. Code Civ. Proc. §§ 2034.280(c), 2034.620(d). Defendants may designate a counter expert in response to Dr. Reading.

C. The parties should attend the hearing prepared to assist the court in re-setting this four-year old case for trial.

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