Judge: Peter A. Hernandez, Case: 23STCV02414, Date: 2025-02-10 Tentative Ruling

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Case Number: 23STCV02414    Hearing Date: February 10, 2025    Dept: 34

Gene Park v. Camino Industries LLC, et al. (23STCV02414)

 

Defendant Jason Oh’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED.

 

Background

 

            On February 3, 2023, Plaintiff Gene Park (“Plaintiff”) filed a complaint against Defendants Camino Industries LLC, Philip Camino, Smith Dok, and Jason Oh (“Defendants”) arising from Plaintiff’s employment by Defendants alleging causes of action for:

1.                 Breach of Contract;

2.                 Meal Break Violations;

3.                 Rest Break Violations;

4.                 Wage Statement Violations (Lab. Code § 226, et. seq);

5.                 Waiting Time Penalties (Lab. Code §§ 201-203);

6.                 Conversion;

7.                 Unfair Competition (Bus. & Prof. Code § 17200, et. seq.);

8.                 Discrimination Based on Sex (Cal. Gov. Code § 12940, et. seq.); and

9.                 Constructive Termination in Violation of Public Policy.

On July 18, 2023, at the request of Plaintiff, the Clerk’s Office entered default on Defendants Smith Dok and Jason Oh.

 

On October 17, 2023, at the request of Plaintiff, the Clerk’s Office entered default on Defendants Camino Industries LLC and Philip Camino.

 

On December 12, 2023, the court set aside the default on specially-appearing Defendant Jason Oh and allowed him to file his proposed Motion to Quash Service of Summons.

 

            On January 23, 2024, the court granted specially-appearing Defendant Jason Oh’s Motion to Quash Service of Summons.

 

            On March 7, 2024, Defendant Jason Oh filed an answer to Plaintiff’s complaint.

 

            On November 19, 2024, Defendant Jason Oh filed this Motion for Summary Judgment, or in the alternative, for Summary Adjudication. On January 27, 2025, Plaintiff filed an opposition. On January 30, 2025, Defendant Jason Oh filed a reply.

 

Legal Standard

 

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.” (Code Civ. Proc., § 437c, subd. (1)(a).)

 

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850, citation omitted.)

 

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, at p. 850; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474, [applying the summary judgment standards in Aguilar to motions for summary adjudication].)

 

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839, citation omitted.)

 

“The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Binder, supra, at p. 840, citations omitted; see also Weiss v. People ex rel. Dep’t of Transp. (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

 

Discussion

 

Evidentiary Objections

 

The court overrules Defendant Jason Oh’s evidentiary objections to the declaration of Kirill Lavinski.

 

Successor Liability

 

            Plaintiff began working as a server and social media coordinator for a restaurant named Imari on September 16, 2021. (Complaint, ¶ 11.) Plaintiff’s immediate supervisors were Defendants Smith Dok and Philip Camino. (Id., ¶ 12.) Defendant Jason Oh (“Oh”) was an investor in Defendant Camino Industries, LLC which was the corporate entity that operated Imari. (Undisputed Material Fact (“UMF”), No. 15.)

 

            Oh moves the court for summary judgment of Plaintiff’s claims, or in the alternative, summary adjudication as to the following issues:

 

Issue No. 1: Plaintiff’s First Cause of Action (Breach of Contract) fails because Oh was not Plaintiff’s employer.

 

Issue No. 2: Plaintiff’s Second Cause of Action (Meal Break Violations) fails because Oh was not Plaintiff’s employer.

 

Issue No. 3: Plaintiff’s Third Cause of Action (Rest Break Violations) fails because Oh was not Plaintiff’s employer.

 

Issue No. 4: Plaintiff’s Fourth Cause of Action (Wage Statement Violations (Lab. Code §226 et. seq.)) fails because Oh was not Plaintiff’s employer.

 

Issue No. 5: Plaintiff’s Fifth Cause of Action (Waiting Time Penalties (Lab. Code §§ 201-203)) fails because Oh was not Plaintiff’s employer.

 

Issue No. 6: Plaintiff’s Sixth Cause of Action (Conversion): The Sixth Cause of Action (Conversion) fails because Oh was not Plaintiff’s employer.

 

Issue No. 7: Plaintiff’s Seventh Cause Of Action (Unfair Competition (Bus. & Prof. Code §17200 et. seq.) fails because Oh was not Plaintiff’s employer.

 

Issue No. 8: Plaintiff’s Eighth Cause of Action (Discrimination Based on Sex (Cal. Gov. Code § 12940 et. seq.)) fails because Oh was not Plaintiff’s employer.

 

Issue No. 9: Plaintiff’s Ninth Cause of Action (Constructive Termination In Violation Of Public Policy) fails because Oh was not Plaintiff’s employer.

 

Issue No. 10: Oh’s Second Affirmative Defense that “Plaintiff was never employed by this Defendant, never worked for this Defendant, never worked at any of this Defendant’s locations, never performed any tasks for this Defendant, was never entitled to any compensation from this Defendant, and therefore has no valid claims against this Defendant” serves as a complete bar to Plaintiff’s claims and is suitable for summary adjudication in defendant Jason Oh’s favor.

 

Issue No. 11: Oh’s Third Affirmative Defense that “Defendant, Jason Oh, was a silent investor in the entity that employed the plaintiff. Mr. Oh had no managerial authority in the employer entity. Mr. Oh had no authority to hire or discharge any employee, nor supervise, direct, or control the acts of employees. Mr. Oh did not implement any of the company’s employment policies or make any personnel decisions. Mr. Oh was not involved in any aspect of scheduling, disciplining or otherwise controlling any of the employees or the employment environment. He has no personal responsibility to the plaintiff” serves as a complete bar to Plaintiff’s claims and is suitable for summary adjudication in defendant Jason Oh’s favor.

 

Issue No. 12: Oh’s Fourth Affirmative Defense that “Jason Oh had no role in managing or operating the entity that employed the plaintiff and is not liable for any of the decision making, or lack thereof, regarding the plaintiff’s claims. He has no personal responsibility to the plaintiff” serves as a complete bar to Plaintiff’s claims and is suitable for summary adjudication in defendant Jason Oh’s favor.

 

Issue No. 13: Oh’s Fifth Affirmative Defense that “Jason Oh had no role in managing employees or payroll of the entity that employed the plaintiff. He has no personal responsibility to the plaintiff” serves as a complete bar to Plaintiff’s claims and is suitable for summary adjudication in defendant Jason Oh’s favor.

 

Issue No. 14: Oh’s Sixth Affirmative Defense that “Jason Oh had no control over the books and records of the entity that employed the plaintiff, and had no say in when it paid, or didn’t pay, the plaintiff. Similarly, he had no control over what was on each paycheck or paystub. Mr. Oh has no personal responsibility to the plaintiff” serves as a complete bar to Plaintiff’s claims and is suitable for summary adjudication in defendant Jason Oh’s favor.

 

It is undisputed that Plaintiff’s claims will lie only against his employer, and that Plaintiff’s employer was Defendant Camino Industries, LLC (“Camino Industries”). (Miklosy v. Regents of University of California (2008) 44 C.4th 876, 900.) The dispute in this motion is whether Oh is properly the successor in interest of Camino Industries, such that Plaintiff may assert his claims against Oh under a theory of successor liability.

            There appears to be no on point authority which directly addresses the application of successor liability in the FEHA context. However, federal courts interpreting Title VII have developed a multi-factor test to evaluate whether an employer has successor liability. (Sullivan v. Dollar Tree Stores, Inc. (9th Cir. 2010) 623 F.3d 770, 781 (collecting cases and summarizing history).) California courts “as a general rule” look to federal decisions interpreting Title VII for guidance relative to determining who is a covered employer under FEHA. (Page v. Superior Court (1995) 31 C.A.4th 1206, 1215.) Therefore, the test for successor liability under Title VII is the properly applicable test under FEHA. Additionally, the federal test for successor liability under Title VII has been applied by the Court of Appeal to the context of Labor Code violations. (Superior Care Facilities v. Workers’ Comp. Appeals Board (1994) 27 C.A.4th 1015, 1025-28.)

            “[T]he “successor in interest” inquiry has arisen in many contexts and has a long history in case law. (Cobb v. Contract Transp., Inc., 452 F.3d 543, 550–56 (6th Cir.2006) (recounting the history in some detail).) Briefly, the “successor in interest” doctrine arose initially in traditional labor-law cases involving disputes between a new employer and the union recognized by the former employer. [Citations]. Courts later adopted and applied the same considerations in Title VII cases [Citations].” (Sullivan, supra, 623 F.3d at 781.)

“[T]he real question in each of these ‘successorship’ cases is, on the particular facts, what are the legal obligations of the new employer to the employees of the former owner or their representative. The answer to this inquiry requires analysis of the interests of the new employer and the employees and of the policies of the labor laws in light of the facts of each case and the particular legal obligation which is at issue, whether it be the duty to recognize and bargain with the union, the duty to remedy unfair labor practices, the duty to arbitrate, etc. There is, and can be, no single definition of ‘successor’ which is applicable in every legal context. A new employer, in other words, may be a successor for some purposes and not for others.” (EEOC v. MacMillan Bloedel Containers, Inc. (9th Cir. 1974) 503 F.2d 1086, 1091 (quoting Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (1974) 417 U.S. 249, n. 9).) “The inquiry is not merely whether the new employer is a “successor” in the strict corporate-law sense of the term. The successorship inquiry in the labor-law context is much broader.” (Sullivan, supra, 623 F.3d at 781.)

“Failure to hold a successor employer liable for the discriminatory practices of its predecessor could emasculate the relief provisions of Title VII by leaving the discriminatee without a remedy or with an incomplete remedy. In the case where the predecessor company no longer had any assets, monetary relief would be precluded. Such a result could encourage evasion in the guise of corporate transfers of ownership. Similarly, where relief involved seniority, reinstatement or hiring, only a successor could provide it. It is to be emphasized that the equities of the matter favor successor liability because it is the successor who has benefited from the discriminatory employment practices of its predecessor. The nature and extent of liability is subject to no formula, but must be determined upon the facts and circumstances of each case. The primary concern, however, is to provide the discriminatee with full relief. Such relief may be awarded against the successor. On the other hand, the amenability of the predecessor to suit and its ability to provide relief will be a necessary inquiry.” (EEOC, supra, 503 F.2d at 1091-92.)

“Because the origins of successor liability are equitable, fairness is a prime consideration in its application. Courts have stressed the intensely fact-specific nature of the inquiry.” (Sullivan, supra 623 F.3d at 782 [internal quotations and citations omitted].) “Courts that have considered the successorship question in a labor context have found a multiplicity of factors to be relevant. These include:

1)     whether the successor company had notice of the charge,

2)     the ability of the predecessor to provide relief,

3)     whether there has been a substantial continuity of business operations,

4)     whether the new employer uses the same plant,

5)     whether he uses the same or substantially the same work force,

6)     whether he uses the same or substantially the same supervisory personnel,

7)     whether the same jobs exist under substantially the same working conditions,

8)     whether he uses the same machinery, equipment and methods of production and

9)     whether he produces the same product.”

(EEOC, supra, 503 F.2d at 1094.)

Oh contends that the California Supreme Court, in Ray v. Alad Corp., (1977) 19 Cal.3d 22, 28, introduced the doctrine of successor liability in the context of “whether a corporation purchasing the principle assets of another corporation assumes the other’s liabilities.” (Reply, at p. 8.) As such, Oh argues that since Oh did not purchase anything from Camino Industries, then the successor liability cannot apply. Oh also argues that the reasoning in EEOC is not binding on the court as it is a federal case. For the reasons stated above, the court finds that the theory of successor liability could be applicable when an investor takes over the management of an employer entity which harmed an employee if an analysis of the factors warrants the imposition of such liability. The court evaluates the successor liability factors in light of the evidence produced by Plaintiff:

Factor 1: It is undisputed Oh had notice of Plaintiff’s claims as Plaintiff filed his complaint against both Oh and Camino Industries on February 3, 2023.

Factor 2: There is evidence to show that Camino Industries and Defendant Philip Camino are incapable of providing relief to Plaintiff. Oh states that Defendant Philip Camino has pled guilty to wire fraud and is facing a potential sentence. (MSJ, at p. 9.)

Factor 3: Plaintiff has introduced evidence to show a substantial continuity of business operations. Oh took over the operations of Imari, a sushi restaurant, which now operates under a different name due to the mismanagement by Camino Industries in order for Oh to salvage his investment in Imari. (Lavinski Decl., Exh. A, at pp. 80-81.)

Factor 4: Plaintiff has introduced evidence to show that Oh occupies the same location as Camino Industries to operate Oh’s restaurant. (Ibid.)

Factor 5: Plaintiff has introduced evidence to show Oh uses a substantially similar work force as Camino Industries as Oh hired Defendant Smith Dok to be manager of Oh’s restaurant and other employees of Imari, including Imari’s chef. (Id., at pp. 83-85.)

Factor 6: Plaintiff has introduced evidence to show Oh used the same supervisory personnel as Oh hired Defendant Smith Dok to be manager of Oh’s restaurant. (Ibid.)

Factor 7: Plaintiff has introduced evidence to show that the same jobs exist under the same working conditions as Oh’s business continues to operate as a sushi restaurant like Imari. (Id., at p. 81.)

Factor 8: Plaintiff has introduced evidence to show that there has been no change in equipment or methods between Imari and Oh’s restaurant. (Id., at p. 87.)

Factor 9: It is undisputed that Imari and Oh’s restaurant produce the same product as they are both sushi restaurants.

            In sum, Plaintiff has carried his burden of showing a dispute of material fact as to whether Oh is properly the successor of Camino Industries relevant to impose liability of Plaintiff’s claims onto Oh. Therefore, Oh’s motion is denied. The court does not need to address any of Oh’s additional arguments.

Conclusion

 

Defendant Jason Oh’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED.