Judge Peter Wilson, Case 2023-01322059 2023-08-31 Tentative Ruling

Judge: Peter Wilson, Case: 2023-01322059, Date: 2023-08-31 Tentative Ruling

Defendant Warmel Management Company’s Demurrer to Plaintiff Liliana Pereira’s Complaint is OVERRULED; the alternative motion to stay is GRANTED.

Request for Judicial Notice

Defendant’s unopposed Request for Judicial Notice (ROA 13) of Exhibits A–D is GRANTED. (Cal. Evid. Code §§ 452(d), (h).) As to Exhibit E, it is DENIED AS MOOT as “[i]t is not necessary to ask the court to take judicial notice of materials previously filed in the case; all that is necessary is to call the court's attention to such papers”. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 9:53.1a.)

Defendant’s unopposed Supplemental Request for Judicial Notice (ROA 28) of Exhibit A is GRANTED. (Cal. Evid. Code § 452(h).) The Court declines to rule on the request as to Exhibit B as the document is immaterial to the Court’s ruling.

The noticed documents are not accepted for the truth of any facts asserted therein.

The Demurrer

1. Standing

Defendant asserts that, because Plaintiff Pereira submitted her individual PAGA claim to binding arbitration by way of her Amended Arbitration Demand filed with JAMS on 05-01-23, Viking River precludes her from litigating her representative PAGA claim here as she lacks standing. (Mem. at 16; Richards Jr. Decl. Ex. D; Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, 1925.) Defendant cites a number of District Court cases purportedly following Viking River and states the pending Adolph case does not change the result. The Court disagrees.

The California Supreme Court in Adolph foreclosed Defendant’s argument. It held that “a plaintiff who files a PAGA action with individual and non-individual claims does not lose standing to litigate the non-individual claims in court simply because the individual claims have been ordered to arbitration.” (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5^th 1104.)

The demurrer is thus OVERRULED on this basis.

2. Statutory Plea of Abatement (C.C.P. § 430.10(c))

Defendant contends that C.C.P. § 430.10(c) requires dismissal of this action because the earlier-filed Velasco action (Jesus Velasco v. Warmel Management Company, Case No. 30-2022-01242308-CU-OE-CXC) was brought by the same party (the State of California) against the same defendant (Warmel Management Co.), the actions include only a representative PAGA claim, seek the same relief for the same persons, and “the allegations set forth in the Pereira Complaint are substantially encompassed by the Velasco FAC.” (Mem. at 19.)

Plaintiff correctly responds that the statutory plea of abatement based on C.C.P. § 430.10(c) requires (1) absolute identity of the parties and (2) the first action must afford the same relief sought in the second action. (Opp. at 6 [citing Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal. App. 3d 781, 787-88 (abatement appropriate “only where a judgment in the first action would be a complete bar to the second action”)].) Plaintiff notes her nine additional alleged underlying Labor Code violations, such that judgment in Velasco would not bar this action.

Even if the Court concluded that, despite different representative plaintiffs, the parties were legally the same (an issue the Court need not decide for present purposes), the Court further finds that on the claims as pled, a judgment in Velasco would not constitute a complete bar to further proceedings in this action.

Abatement pursuant to C.C.P. § 430.10(c) is accordingly DENIED.

3. Exclusive Concurrent Jurisdiction

Defendant further contends this matter must be stayed because it was filed after the Velasco action and the actions involve the same subject matter and arise from the same events. (Mem. at 20.)

As already noted, Plaintiff correctly points out that the Velasco complaint does not allege facts on which several of Plaintiff’s alleged violations are based. Under the doctrine of exclusive concurrent jurisdiction, “when two or more courts have subject matter jurisdiction over a dispute, the court that first asserts jurisdiction assumes it to the exclusion of the others.” (Shaw v. Superior Ct. of Contra Costa Cnty. (2022) 78 Cal. App. 5th 245, 255.) “The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits.” (Id.) “If the court exercising original jurisdiction has the power to bring before it all the necessary parties, the fact that the parties in the second action are not identical does not preclude application of the rule.” (Id.) “Moreover, the remedies sought in the separate actions need not be precisely the same so long as the court exercising original jurisdiction has the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings.” (Id.)

In Velasco, unlike here, there are no express allegations regarding sick leave, vacation time, or criminal history inquires. Additionally, even when the underlying violations appear to be the same, they are based on different facts. For example, while both actions plead violations for unpaid wages and off-the-clock work, Velasco’s factual basis includes orientation, training, temperature checks, and other activities (FAC ¶ 16). Here, Plaintiff alleges off-the-clock work based on “preparing deposits and/or counting cash register money” as well as “onboarding.” (Compl. ¶¶ 30, 32). Furthermore, Plaintiff here alleges the lack of business expense reimbursement based on “uniforms, aprons, and/or the use of Aggrieved Employees’ personal mobile phone and data usage for work related purposes including but not limited to receiving and responding to work related messages and/or phone calls and/or for purposes of downloading a payroll/timekeeping application”. (Compl. ¶ 68.) While Velasco also includes an underlying violation based on failure to reimburse business expenses, the factual basis is unknown.

Accordingly, Defendant has not established that the Velasco action can provide complete relief as to the underlying Labor Code violations alleged here such that exclusive concurrent jurisdiction applies.

A stay based on exclusive concurrent jurisdiction is accordingly DENIED.

4. Inherent Discretion

Finally, Defendant contends that if the Court finds that standing, abatement, and exclusive concurrent jurisdiction do not apply, the Court should exercise its inherent power to stay this case for efficiency and judicial economy. For its part, Plaintiff argues this action contains “a broader group of employees”, but, as the later-filed action, that assertion appears to be based solely on the additional underlying violations asserted.

“Granting a stay in a case where the issues in two actions are substantially identical is a matter addressed to the sound discretion of the trial court.” (Thomson v. Continental Ins. Co. (1967) 66 Cal. 2d 738, 746-47.)

In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced.

(Id. at 746-47.)

There are good reasons to stay this case until the Velasco action is resolved. While the cases do not have identical claims, the representative PAGA causes of action are based upon the same general set of facts, involve mostly the same Labor Code violations, and cover overlapping time periods. Unnecessary and wasteful duplication of effort for the parties and the court flows inevitably from having these cases proceed separately and it is likely if not certain that the resolution of issues in Velasco, whether via settlement or court rulings, will considerably narrow, or eliminate, all or some of the issues in the present matter. If the matters were to proceed separately, there is also the risk of conflicting decisions.

Under the circumstances, the Court concludes that a discretionary stay is warranted and this matter is STAYED pending resolution of the Velasco action.

The Court sets a status conference for February 2, 2024 at 9 AM, and the parties are ordered to file a joint status report not later than January 26, 2024.

This Order is without prejudice to the right of any party to request an earlier lifting of the stay should developments in the Velasco action warrant it. This order is also without prejudice to the right of any party to move for consolidation of this action and the Velasco action.

Defendant to give notice.