Judge Teresa A. Beaudet, Case Number: 23STCV01014, Date: 2024-01-29 Tentative Ruling

CHRISTOPHER SOLIS on behalf of himself and other aggrieved employees, Plaintiff, vs. MICHAEL STORES PROCUREMENT COMPANY, INC., et al., Defendants.	Case No.:	23STCV01014
	Hearing Date:	January 29, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANT MICHAELS STORES PROCUREMENT COMPANY, INC.’S MOTION TO STAY

On January 17, 2023, Plaintiff Christopher Solis on behalf of himself and other aggrieved employees (“Plaintiff”) filed the instant action against Defendant Michael Stores Procurement Company, Inc. The Complaint alleges one cause of action for civil penalties and wages pursuant to the Private Attorneys General Act of 2004 (“PAGA”).

Defendant Michaels Stores Procurement Company, Inc. (“Defendant”) filed an answer to the Complaint in this action on March 13, 2023.

Defendant now moves for an order staying this action pending a resolution of the action Crawford v. Michaels Stores Procurement Company, Inc. The motion is unopposed.

Defendant moves for an order staying this action pending a resolution of the action Curtis Crawford v. Michaels Stores Procurement Company, Inc., et al., Case No. STK-CV-UOE-2022-10922, filed in the San Joaquin County Superior Court (herein, “Crawford”). (See Defendant’s RJN, Ex. A.) Defendant asserts that “[t]he exclusive concurrent jurisdiction rule squarely applies here, and it precludes Solis from litigating this case while Crawford is pending.” (Mot. at p. 5:10-11.)

“Under the rule of exclusive concurrent jurisdiction, when two superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved. 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. The rule is established and enforced not so much to protect the rights of parties as to protect the rights of Courts of co-ordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the administration of justice. The rule of exclusive concurrent jurisdiction may constitute a ground for abatement of the subsequent action.” ((Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786-787 [internal quotations and citations omitted].)

“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. 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. 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.” ((Id. at p. 788 [internal citations omitted].) The Plant Insulation Court also found that “[w]e agree with Childs that the 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 p. 789.)

Defendant notes that a Representative Action Complaint was filed in Crawford on November 28, 2022, alleging one cause of action for violation of the Private Attorneys General Act. (Defendant’s RJN, Ex. A.) The instant action was filed thereafter, on January 17, 2023. The Defendant named in Crawford is Michaels Stores Procurement Company, Inc. (Defendant’s RJN, Ex. A.) In addition, Defendant Michaels Stores Procurement Company, Inc. answered the Complaint in the instant action.[1]

Defendant asserts that “[e]very allegedly aggrieved employee in this action (including Solis himself) is also an allegedly aggrieved employee in Crawford.” (Mot. at p. 5:11-12.) Defendant cites to the first paragraph of the Complaint in the instant action, which alleges as follows:

“This is a Private Attorneys General Act of 2004, Labor Code §§ 2698, et seq. (‘PAGA’) representative action brought by Plaintiff on behalf of the State of California, himself and other current and former aggrieved employees of Defendants who worked as hourly non-exempt employees in California from October 2, 2021 to the present for failure to pay all overtime hours worked at the overtime rate of pay; failure to authorize or permit all legally required and/or compliant meal periods or pay meal period premium wages; failure to authorize or permit all legally required and/or compliant rest periods or pay rest period premium wages; failure to pay wages for accrued paid sick time at the regular rate of pay; statutory penalties for failure to timely pay earned wages during employment; statutory penalties for failure to provide accurate wage statements; statutory waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment. Plaintiff seeks on a representative basis, following notice to the Labor and Workforce Development Agency, civil penalties, reasonable attorneys’ fees pursuant to Labor Code section 2699(g)(1) and costs brought on behalf of Plaintiff, the State of California, and others aggrieved.” (Compl., ¶ 1, emphasis added.)

Paragraph 7 of the Complaint in Crawford alleges that “PLAINTIFF, and such persons that may be added from time to time who satisfy the requirements and exhaust the administrative procedures under the Private Attorney General Act, brings this Representative Action on behalf of the State of California with respect to himself and all individuals who are or previously were employed by DEFENDANT in California, including any employees staffed with DEFENDANT by a third party, and classified as non-exempt employees (‘AGGRIEVED EMPLOYEES’) during the time period of September 9, 2021 until a date as determined by the Court (the ‘PAGA PERIOD’).” (Defendant’s RJN, Ex. A, ¶ 7, emphasis added.)

Defendant thus asserts that Plaintiff in the instant action pursues his claims “on behalf of a subset of the same employees: Michaels nonexempt employees since October 2, 2021.” (Mot. at p. 3:2-3.) Defendant also asserts that “[t]he principles favoring a stay are particularly compelling here because the plaintiffs both purport to represent the interests of the State of California.” (Mot. at p. 4:3-4.) Defendant notes that “[a]n employee plaintiff suing…under the Labor Code Private Attorneys General Act of 2004, does so as the proxy or agent of the state’s labor law enforcement agencies.” ((Arias v. Superior Court (2009) 46 Cal.4th 969, 986.)

Defendant also asserts that “all the claims asserted here were first asserted in Crawford.” (Mot. at p. 5:13.) Defendant notes that in the Complaint in the instant action, Plaintiff alleges that “Defendants failed to authorize or permit legally required and compliant meal periods to Plaintiff and other current and former aggrieved California-based hourly non-exempt employees due to Defendants’ policies, practices, and/or procedures…” (Compl., ¶ 21.) Plaintiff further alleges that “[f]rom on or around October 2, 2021, to present, Defendant failed to provide Plaintiff and other current and former aggrieved California-based hourly non-exempt employees second uninterrupted duty-free meal period of no less than thirty (30) minutes no later than the end of their tenth hour of work.” (Compl., ¶ 21.) In Crawford, the Complaint alleges that “DEFENDANT requires PLAINTIFF to work while clocked out during what is supposed to be PLAINTIFF’s off-duty meal break. PLAINTIFF was from time to time interrupted by work assignments while clocked out for what should have been PLAINTIFF’s off-duty meal break.” (Defendant’s RJN, Ex. A, ¶ 11.) The Crawford action further alleges that “DEFENDANT from time to time failed to provide PLAINTIFF and AGGRIEVED EMPLOYEES with a second off-duty meal period for some workdays in which these employees were required by DEFENDANT to work ten (10) hours of work. DEFENDANT also engaged in the practice of rounding the meal period times to avoid paying penalties to PLAINTIFF and the AGGRIEVED EMPLOYEES. PLAINTIFF and the AGGRIEVED EMPLOYEES therefore forfeit meal breaks without additional compensation and in accordance with DEFENDANT’s corporate policy and practice.” (Defendant’s RJN, Ex. A, ¶ 14.)

Defendant also notes that in the instant action, Plaintiff alleges that “when he and other current and former aggrieved California-based hourly non-exempt employees earned overtime wages, Defendants failed to pay them overtime wages at the proper overtime rate of pay due to Defendants’ failure to include all remuneration when calculating the overtime rate of pay. Specifically, Defendants maintained a policy, practice, and/or procedure of failing to include all remuneration such as, for example, shift differential and bonus pay in the regular rate of pay when calculating Plaintiff and other current and former aggrieved California-based hourly non-exempt employees regular rate of pay for the purpose of paying overtime wages.” (Compl., ¶ 16.) In Crawford, the Complaint alleges that “when calculating the regular rate of pay in order to pay overtime and meal and rest break premiums to PLAINTIFF and the AGGRIEVED EMPLOYEES, DEFENDANT failed to include the incentive compensation as part of the employees’ ‘regular rate of pay’ for purposes of calculating overtime pay and meal and rest break premium pay…As a matter of law, the incentive compensation received by PLAINTIFF and the AGGRIEVED EMPLOYEES must be included in the ‘regular rate of pay.’ The failure to do so has resulted in a underpayment of overtime compensation and meal and rest break premiums to PLAINTIFF and the AGGRIEVED EMPLOYEES by DEFENDANT.” (Defendant’s RJN, Ex. A, ¶ 13.)

In addition, Defendant notes that in the instant action, Plaintiff alleges that “Defendants failed to authorize or permit all legally required and compliant rest periods to Plaintiff and other current and former aggrieved California-based hourly non-exempt employees due to Defendants’ policies, practices, and/or procedures…” (Compl., ¶ 28.) Plaintiff in the instant action further alleges that “Defendants maintained a policy, practice, and/or procedure of failing to compensate Plaintiff and other current and former aggrieved California-based hourly non-exempt employees with one (1) hour of pay at their regular rate of pay for each workday they did not receive legally required and compliant rest periods, in violation of Labor Code section 226.7.” (Compl., ¶ 29.)

In Crawford, the Complaint alleges that “[d]uring the PAGA PERIOD, PLAINTIFF and the AGGRIEVED EMPLOYEES were also required from time to time to work in excess of four (4) hours without being provided ten (10) minute rest periods. Further, these employees were denied their first rest periods of at least ten (10) minutes for some shifts worked of at least two (2) to four (4) hours from time to time, a first and second rest period of at least ten (10) minutes for some shifts worked of between six (6) and eight (8) hours from time to time, and a first, second and third rest period of at least ten (10) minutes for some shifts worked of ten (10) hours or more from time to time. PLAINTIFF and the AGGRIEVED EMPLOYEES were also not provided with one hour wages in lieu thereof.” (Defendant’s RJN, Ex. A, ¶ 15.)

In addition, Defendant notes that in the instant action, Plaintiff alleges that “when he and other current and former aggrieved California-based hourly non-exempt employees elected to use paid sick time, Defendants failed to pay them sick time wages at the proper sick time rate of pay due to Defendants’ failure to include all remuneration when calculating the sick time rate of pay.” (Compl., ¶ 36.) In the Crawford action, the Complaint alleges that “DEFENDANT underpaid sick pay wages to PLAINTIFF and the AGGRIEVED EMPLOYEES by failing to pay such wages at the regular rate of pay in violation of Cal. Lab. Code Section 246. Specifically, PLAINTIFF and other non-exempt employees earn non-discretionary remuneration. Rather than pay sick pay at the regular rate of pay, DEFENDANT underpaid sick pay to PLAINTIFF and the AGGRIEVED EMPLOYEES at their base rates of pay.” (Defendant’s RJN, Ex. A, ¶ 20.)

Defendant further notes that in the instant action, Plaintiff alleges that “Defendants failed to timely pay Plaintiff’s and other current and former aggrieved California-based hourly non-exempt employees’ earned wages (including overtime wages, meal period premium wages, and/or rest period premium wages), in violation of Labor Code section 204. Defendants’ aforementioned policies, practices, and/or procedures resulted in their failure to pay Plaintiff’s and other current and former aggrieved California-based hourly non-exempt employees’ their earned wages within the applicable time frames outlined in Labor Code section 204.” (Compl., ¶ 39.) The Crawford Complaint alleges that “DEFENDANT from time to time failed to pay PLAINTIFF and the AGGRIEVED EMPLOYEES within seven (7) days of the close of the payroll period in accordance with Cal. Lab. Code§ 204(d), including but not limited to for the ‘Hourly’ regular wage payments.” (Defendant’s RJN, Ex. A, ¶ 19.)

Defendant further notes that in the Complaint in the instant action, Plaintiff alleges that “Defendants’ failure to pay Plaintiff and other current and former aggrieved California-based hourly non-exempt employees all wages earned (including overtime wages, meal period premium wages, and/or rest period premium wages) rendered Plaintiff’s and other current and former aggrieved California-based hourly non-exempt employees’ wage statements inaccurate, in violation of Labor Code section 226.” (Compl., ¶ 41.) In the Crawford case, the Complaint alleges that “[f]rom time to time, DEFENDANT also failed to provide PLAINTIFF and the AGGRIEVED EMPLOYEES with complete and accurate wage statements which failed to show, among other things, the correct gross and net wages earned… the wage statements failed to identify the accurate total hours worked each pay period. When the hours shown on the wage statements were added up, they did not equal the actual total hours worked during the pay period in violation of Cal. Lab. Code 226(a)(2).” (Defendant’s RJN, Ex. A, ¶ 17.)

In addition, Defendant notes that in the Complaint in the instant action, Plaintiff alleges that “because Defendants failed to pay Plaintiff and other current and former aggrieved California-based hourly non-exempt employees all their earned wages (including Overtime wages for overtime hours worked, meal period premium wages, and/or rest period premium wages), Defendants failed to pay those employees timely after each employee’s termination and/or resignation, in violation of Labor Code sections 201, 202, and 203.” (Compl., ¶ 43.) The Complaint in the Crawford action alleges that “[a]s a pattern and practice, DEFENDANT regularly failed to pay PLAINTIFF and the AGGRIEVED EMPLOYEES their correct wages and accordingly owe waiting time penalties pursuant to Cal. Lab. Code Section 203.” (Defendant’s RJN, Ex. A, ¶ 23.) The Crawford action also alleges that “DEFENDANT failed to pay all compensation due to PLAINTIFF and the AGGRIEVED EMPLOYEES, made unlawful deductions from compensation payable to PLAINTIFF and the AGGRIEVED EMPLOYEES, failed to disclose all aspects of the deductions from compensation payable to PLAINTIFF and the AGGRIEVED EMPLOYEES, and thereby failed to pay these employees all wages due at each applicable pay period and upon termination.” (Defendant’s RJN, Ex. A, ¶ 24.)

As set forth above, Plaintiff did not file an opposition to the instant motion. Plaintiff thus does not dispute that the doctrine of exclusive concurrent jurisdiction applies here, or that a stay of the instant action is warranted. Based on the foregoing, the Court agrees with Defendant that a stay is warranted, particularly to avoid inconsistent rulings. Thus, the Court grants Defendant’s motion to stay this action “pending a resolution of” Crawford. (See Mot. at p. 1:6.)

The Court sets a status conference on ___________________ at 10:00 a.m. in Dept. 50. The parties are ordered to file a joint report regarding the status of the Crawford action five court days prior to the status conference, with a courtesy copy delivered directly to Department 50.¿¿

[1]The Court notes that the Defendant named in the Complaint in the instant action is Michael Stores Procurement Company, Inc. (Emphasis added.)

Superior Court of California

County of Los Angeles

Department 50