Judge Ronald F. Frank, Case Number: 23STCV27400, Date: 2024-02-15 Tentative Ruling

Judge: Ronald F. Frank, Case: 23STCV27400, Date: 2024-02-15 Tentative Ruling

Case Number: 23STCV27400 Hearing Date: February 15, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: February 15, 2024¿¿

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CASE NUMBER: 23STCV27400

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CASE NAME: Melvin Molina v. Top Golf USA Inc., et. al .¿¿¿

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MOVING PARTIES: Defendants, Top Golf USA Inc. and Top Golf Payroll Services, LLC¿

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RESPONDING PARTY: Plaintiff, Melvin J. Tronchez Molina

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TRIAL DATE: None set.¿

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MOTION:¿ (1) Demurrer, or in the alternative, motion to stay proceedings

Tentative Rulings: (1) Defendants’ Demurrer is SUSTAINED and this action is stayed pending resolution of the earlier filed class actions

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I. BACKGROUND¿¿

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A. Factual¿¿

On November 6, 2023, Plaintiff Melvin J. Tronchez Molina (“Plaintiff”) filed this PAGA action against Defendants Top Golf USA Inc. (“TGUI”) and Top Golf Payroll Services, LLC¿(“TGPS”) (together, “Defendants”), bringing six causes of action for various labor code violations arising out of Plaintiff’s former employment at TGUI’s El Segundo location from March, 2022 through August, 2022. Plaintiff alleges that Defendants used policies that improperly compensated Plaintiff and other employees for overtime wages, failed to provide uninterrupted meal breaks and rest periods, failed to pay proper wages during employment and upon termination, and failed to reimburse for necessary business expenses. Plaintiff alleges he complied with PAGA by giving written notice to the Labor Workforce Development Agency of the allegations contained in this complaint. Plaintiff alleges that prior to filing this motion, sixty-five calendar days elapsed since the postmark date of the notice without the LWDA taking any action to investigate Plaintiff’s allegations.

B. Procedural¿¿

On December 14, 2023, Defendants filed the instant demurer or in the alternative, motion to stay the present action, along with the request for judicial notice. On February 1, 2024, Plaintiff filed an opposition brief along with his own request for judicial notice. On February 7, 2024, Defendants filed a reply.

¿II. MOVING PARTY’S GROUNDS FOR THE DEMURRER¿, OR, IN THE ALTERNATIVE, FOR A STAY

¿¿Defendants demur to the entire action on the grounds that this action should be dismissed pursuant to a statutory plea in abatement, as it is the fifth filed action that involves substantially the same claims and parties and the third duplicative PAGA action, and there is nothing in the Complaint to show this action should take priority over the previously filed actions.

In the alternative, Defendants request a stay of the proceedings pursuant to the doctrine of exclusive concurrent jurisdiction or based on the Court’s discretion.

Defendants contend the parties will incur unnecessary expense and face a substantial risk of inconsistent rulings if the present action proceeds simultaneously with the four prior, duplicative PAGA and class actions.

¿III. REQUEST FOR JUDICIAL NOTICE¿

Defendants request the Court take judicial notice of the following:

1. Exhibit 1: The original Complaint in Bob B. Benyamin v. Topgolf Payroll Services, LLC, Topgolf International, Inc., and Topgolf USA Roseville, LLC (“Benyamin Class Action”) which was originally filed in Placer County Superior Court, designated as Case No. S-CV-0049735. The Benyamin Class Action was removed to the Eastern District and designated as Case No. 2:23-cv-00303.

2. Exhibit 2: The June 15, 2023 Order issued by the Court on Defendants’ Rule 12 motion to dismiss the First Amended Complaint in the Benyamin Class Action.

3. Exhibit 3: The Second Amended Complaint (the operative complaint) filed in the Benyamin Class Action, that was filed on July 6, 2023.

4. Exhibit 4: The prior PAGA action, Bob Benyamin v. Topgolf Payroll Services, LLC, Topgolf International, Inc., Topgolf USA Roseville, LLC, that was filed on March 20, 2023 in Placer County Superior Court. (Case No. S-CV-00501 28) (the “Benyamin PAGA Action”).

5. Exhibit 5: The Order issued by the Placer County Superior Court on August 10, 2023 staying the Benyamin PAGA Action.

6. Exhibit 6: The prior class action filed by Plaintiff Molina, Melvin Tronchez Molina v. Topgolf USA, Inc., Topgolf Payroll Services, LLC, that was filed in Los Angeles County Superior Court (Case No. 23STCV21053), and was removed to the Central District of California, Case No. 2:23-cv-08636-FMO-AS (the Molina Class Action). This original complaint was filed on August 30, 2023.

7. Exhibit 7: The operative, First Amended Complaint for the Molina Class Action that was filed in the Central District on November 16, 2023.

8. Exhibit 8. The prior PAGA action filed by Plaintiff Anderson, Jose Anderson v. Topgolf Payroll Services, LLC, Topgolf International, Inc., and Topgolf USA El Segundo, LLC that was filed on in Santa Clara Superior Court (Case No. 23CV422616) on September 18, 2023.

The requests are GRANTED. (Evid. Code §¿452(d).)

Plaintiff in opposition requests the Court take judicial notice of the following:

1. Exhibit A: Defendant’s Notice of Motion and Motion for Judgment on the Pleadings and, In the Alternative, Motion to Dismiss or Stay Under the First-To-File Rule; which was filed in the United States District Court, Central District of California, Case No.: 2:23-cv-08636-FMO (ASx).

2. Exhibit B: Memorandum of Points and Authorities In Support Of Defendant’s Motion for Judgment on the Pleadings and In the Alternative, Motion to Stay.

3. Exhibit C: Declaration of Michael J. Nader In Support of Defendant’s Motion for Judgment on the Pleadings or, In the Alternative, Motion to Dismiss or Stay.

4. Exhibit D: Defendant’s Request for Judicial Notice In Support of Motion For Judgment on the Pleadings or, In the Alternative, Motion to Dismiss or Stay Under the First-To-File Rule.

The requests are GRANTED. (Evid. Code §¿452(d).)

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¿IV. ANALYSIS¿

A. Demurrer¿

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Id.)

A complaint may be demurred to on grounds that “[t]here is another action pending between the same parties on the same cause of action.” (CCP §¿430.10(c).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc. §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn 147 Cal.App.4th at 747.)

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Meet and Confer

The Court finds that Defendants’ counsel, Michael Nader, sufficiently met and conferred with Plaintiff’s counsel prior to filing this demurrer. (Nader Decl., ¶ 2.)

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Plea in Abatement (CCP §¿430.10(c))¿

Defendants demur to the Complaint on the grounds of abatement.

“Under the statutory plea in abatement, ‘[t]he pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.’ [Citation.] A statutory plea in abatement requires that the prior pending action be ‘between the same parties on the same cause of action.’” (People ex rel. Garamendi v. American Autoplan, Inc.¿(1993) 20 Cal.App.4th 760, 770 (emphasis in original).) “The identity of two causes of action is determined by a comparison of the facts alleged which show the nature of the invasion of plaintiff's primary right.” (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.)

“The established rule of exclusive concurrent jurisdiction provides that where two or more courts possess concurrent subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to the exclusion of all other courts. In essence, the rule renders concurrent jurisdiction exclusive with the first court.”¿(County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 89-90.) “‘The rationale supporting the rule is a highly practical one. . . . [P]arties to the same controversy or transaction . . . file separate suits on their individual causes of action, usually against each other. Although their claimed rights and therefore their alleged causes of action are distinct, the issues are substantially the same, and individual suits might result in conflicting judgments.¿The rule of priority is designed to avoid the unfortunate result[s] of these conflicts by requiring, in effect, a¿consolidation¿of the separate actions in the court in which jurisdiction of the parties first attached. [Citations.]” (Id. at 89.)

“Although the rule of exclusive concurrent jurisdiction is similar in effect to the statutory plea in abatement, it has been interpreted and applied more expansively, and therefore may apply where the narrow grounds required for a statutory plea of abatement do not exist. [Citation.] Unlike the statutory plea of abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, causes of action or remedies sought in the initial and subsequent actions. [Citations.] 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. 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.” (Plant Insulation Co. v. Fibreboard Corp.¿(1990) 224 Cal.App.3d 781, 788.) “[T]he res judicata test is not required for application of the rule of exclusive concurrent jurisdiction. Instead, we adopt the more expansive subject matter test applied in recent cases and by the trial court herein, which considers whether the first and second actions arise from the ‘same transaction.’” (Id. at 789.)

In opposition, Plaintiff contends that the demurrer must be overruled in its entirety because neither the Parties, nor the claims, between the instant PAGA action and the class action or the other PAGA actions are the same, and no other circumstances warrant abatement. Specifically, Plaintiff contends Defendants have failed to show that the factual theories by which the cases have been brought are identical. For instance, in the Benyamin PAGA Action, the allegations for reimbursement are based on cell phone reimbursement whereas in the instant action, reimbursement is based on maintaining Defendants mandated uniforms. Another example is that in the Benyamin PAGA Action, the failure to pay minimum wages and overtime wages is based on covid screenings whereas in the instant action, this claim is based on Defendants’ alleged failure to use a blended rate.

After considering the arguments put forth by each side, the Court finds that Defendants are entitled to a plea in abatement. The present action concerns the same real party in interest as the earlier filed Benyamin PAGA Action and the Anderson PAGA Action, i.e., the State of California. Moreover, all three PAGA actions name the same defendant, Topgolf Payroll Services, LLC, and allege that it is the joint employer, agent and alter ego of all other defendants named in their respective actions. Furthermore, the class Plaintiff seeks to represent here is the same class as in the other PAGA actions, the “aggrieved employees” of Defendants. Additionally, the allegations in the instant action arise from the same set nexus of facts and core controversy such that a judgment in the prior PAGA actions would serve as res judicata in the instant action. The claims asserted in the instant action—unpaid minimum and overtime wages, non-compliant meal and rest breaks, unreimbursed expenses, non-compliant wage statements, and untimely current and final pay—are the same exact claims asserted in the other two PAGA actions. Furthermore, the time periods for each of these cases appear to involve a similar groups of employees. For example, the Benyamin PAGA case covers January 26, 2022 to resolution, the Anderson PAGA claim covers July 14, 2022 to resolution, and the current action covers September 1, 2022 through resolution. Plaintiff’s argument that the Benyamin PAGA action and the instant action asserts slightly different factual bases for common claims is not well taken. First, neither action narrowly limits the bases for the claims to solely the specific allegations in the complaint. Second, the slight differences do not alter the fact that the actions are substantially similar in the claims and factual bases upon which they are based, and against the same defendant.

Based on the above, the Court finds it most appropriate to stay this action, whether as a matter of abatement or under the Court’s discretion to minimize the risk of inconsistent verdicts and in the interests of judicial economy. The Court also SUSTAINS the demurrer for abatement, and this action is stayed pending the resolution of the earlier-filed actions, including the Benyamin PAGA action.

IV. CONCLUSION¿¿

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For the foregoing reasons, Defendants’ Demurrer is SUSTAINED. Additionally, this action is stayed pending resolution of the earlier-filed actions.

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Moving party is ordered to give notice.¿¿¿¿

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