Judge: Peter Wilson, Case: 21-01202840, Date: 2022-07-21 Tentative Ruling

Motion to Strike


Defendants Dave & Buster’s Management Corporation, Inc., Dave & Buster’s of California Inc. and Dave & Buster’s Inc. (collectively, D&B) move to strike the entire First Amended Complaint pursuant to CCP § 128.7(a).


CCP § 128.7(a) requires every pleading, petition, written notice of motion, or other similar paper to be signed by at least one attorney of record. “An unsigned papers shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” (Code Civ. Proc. § 128.7(a).)


It is undisputed that at least by April 12, 2022, Plaintiff’s counsel was made aware that the First Amended Complaint was not signed and “shall be stricken” unless promptly corrected. ROA 52, Joint Status Conference Statement, pp. 3-4. 


This issue was also raised at the Status Conference on May 6, 2022. At that time, this Court deemed the First Amended Complaint filed as of May 6, 2022 and ordered the responsive pleading due within 30 days. ROA 70, 5/6/2020 Minute Order. However, this ruling did not resolve the lack of a signature on the First Amended Complaint. 


For reasons entirely unexplained by Plaintiff, to date the Court still does not have a signed First Amended Complaint on file.


Accordingly, the Court GRANTS the Motion to Strike the First Amended Complaint.


The Court declines to determine whether Plaintiff’s PAGA claim is time-barred since that is not at issue in this Motion.


The Court DENIES the request for attorney fees. Defendants did not show that they met and conferred with Plaintiff in an informal attempt to resolve this issue as required by CCP §435.5 after this Court’s May 6, 2022 Minute Order and prior to filing this Motion. ROA 80, Gonda Declaration. In any event, none of the sections  relied upon by Defendants support an award of sanctions in this motion.


Demurrer and/or Motion to Stay


As the First Amended Complaint is stricken, as set forth above, the operative complaint in this action is the Class Action complaint filed May 26, 2021.


Requests for Judicial Notice


Defendants’ unopposed Request for Judicial Notice (ROA 84) is GRANTED.


Plaintiff’s unopposed Request for Judicial Notice (ROA 102) of the motion for preliminary approval and Hayward Declaration in support filed in the Hayward Action is GRANTED. The Court takes judicial notice of the filing and existence of these documents and the matters in the motion for preliminary approval and Hayward Declaration in support in the Hayward Action that are indisputably true. (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.)


It is undisputed that the class action allegations and claims in the Hayward Action include and indeed overlap the allegations and claims in this case.


“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., 66 Cal. 2d 738, 746-47 (1967) (citations omitted). In exercising such discretion, a court may “find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.” Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863- 64 (9th Cir. 1979).


Here, given the advanced nature of the proceedings in the Hayward Action, with the parties there in the process of seeking court approval for the settlement of that action, and given the inevitable impact such approval would have for the class action claims in this case, potentially wholly subsuming them, the Court here indeed finds “it is efficient for its own docket and the fairest course for the parties to enter a stay of [this action] before it, pending resolution” of the Hayward Action.


Accordingly, the Motion to Stay is GRANTED.  This case is stayed in its entirety, until further Order of the Court.


Without limiting the scope of the stay for all purposes within the meaning of CCP section 583.340, the Court hereby sets a status conference on September 30, 2022 at 9:00 a.m.  The parties are ordered to file a joint status report not later than September 23, 2022.


The Court will revisit the issue of the stay at the September 30, 2022 status conference. In the event that developments in the Hayward Action warrant it, the parties may by stipulation, or on duly noticed motion in the absence of stipulation, request an earlier lifting of the stay.


Defendants are ordered to give notice.