Judge Teresa A. Beaudet, Case Number: 23STCV16142, Date: 2023-11-13 Tentative Ruling

MACKENZIE ANNE THOMA, a.k.a. KENZIE ANNE, as an aggrieved employee, and on behalf of all other aggrieved employees under the Labor Code Private Attorneys’ General Act of 2004, Plaintiff, vs. VXN GROUP LLC, et al., Defendants.	Case No.:	23STCV16142
	Hearing Date:	November 13, 2023
	Hearing Time:	10:00 a.m.
	TENTATIVE RULING RE: MOTION TO STAY PROCEEDINGS; DEMURRER FOR PLEA IN ABATEMENT

Plaintiff Mackenzie Anne Thoma, a.k.a. Kenzie Anne, as an aggrieved employee, and on behalf of all other aggrieved employees under the Labor Code Private Attorneys’ General Act of 2004 (“Plaintiff”) filed this action on July 11, 2023 against Defendants VXN Group LLC,

Strike 3 Holdings LLC, General Media Systems, LLC, and Mike Miller (collectively, “Defendants”). The Complaint contains one cause of action for civil penalties under the Private Attorneys’ General Act (2004) (“PAGA”).

On October 30, 2023, the Court issued a minute order in this matter providing, inter alia, that “[p]ursuant to the request of moving party, the Hearing on Demurrer - without Motion to Strike scheduled for 12/22/2023, and Hearing on Motion for Stay of Proceedings scheduled for 06/14/2024 are advanced to this date and continued to 11/13/2023 at 10:00 AM in Department 50 at Stanley Mosk Courthouse. Plaintiff’s opposition brief is to be filed and served on Defense by 11/07/2023. Defendant’s reply brief is to be filed and served on Plaintiff by 11/09/2023.”

Defendants now move for an order staying Plaintiff’s complaint. Plaintiff opposes.

Defendants also filed a demurrer for plea in abatement in which they “move for an order dismissing or abating MACKENZIE ANNE THOMA’s…Complaint on the ground that there is another action pending between the parties dealing with the same subject matter as this action.” Plaintiff opposes.

Objection No. 1: sustained as to “to leapfrog the discovery procedures in the Class Action,” overruled as to the remainder.

The Court notes that Plaintiff interposes several objections to the Supplemental Declaration of Emilie Kennedy on the grounds that, inter alia, the declaration was untimely filed. As set forth above, on October 30, 2023, the Court issued a minute order providing that “[p]ursuant to the request of moving party, the Hearing on Demurrer - without Motion to Strike scheduled for 12/22/2023, and Hearing on Motion for Stay of Proceedings scheduled for 06/14/2024 are advanced to this date and continued to 11/13/2023 at 10:00 AM in Department 50 at Stanley Mosk Courthouse. Plaintiff’s opposition brief is to be filed and served on Defense by 11/07/2023. Defendant’s reply brief is to be filed and served on Plaintiff by 11/09/2023.”

The Supplemental Declaration of Emilie Kennedy was filed on November 6, 2023. The Court’s October 30, 2023 minute order does not state that Defendants were authorized to file supplemental briefing.

Pursuant to Code of Civil Procedure section 1005, subdivision (b), “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” Sixteen court days before the November 13, 2023 hearing date is October 19, 2023. The Supplemental Declaration of Emilie Kennedy was filed after this date, on November 6, 2023.[1] Accordingly, the Court sustains Plaintiff’s objections to the Supplemental Declaration of Emilie Kennedy.

Defendants indicate that on April 20, 2023, Plaintiff filed a Class Action Complaint in the

Los Angeles County Superior Court, Case No. 23STCV08761, entitled Mackenzie Anne Thoma, a.k.a. Kenzie Anne, an individual and on behalf of all others similarly situated v. VXN Group LLC, et al. (Defendants’ RJN, Ex. A.)

Defendants’ counsel states that “[o]n June 21, 2023, Defendants filed a Notice of Removal pursuant to the Class Action Fairness Act, removing [Case No. 23STCV08761] to the United States District Court for the Central District of California.” (Kane Decl., ¶3.) On June 28, 2023, Defendants filed a Motion to Dismiss. (Kane Decl., ¶ 4.) In addition, on July 21, 2023, Plaintiff filed a Motion for Remand to Los Angeles Superior Court. (Kane Decl., ¶ 6.)

On August 30, 2023, the United States District Court for the Central District of California issued an “Order Re Plaintiff’s Motion to Remand…and Defendants’ Motion to Dismiss…” in the matter entitled Mackenzie Anne Thoma, a.k.a. Kenzie Anne, an individual and on behalf of all others similarly situated v. VXN Group LLC, et al., Case No. 2:23-cv-04901. (Defendants’ RJN, Ex. B.) The Order provides, inter alia, that “[t]he Court severs Thoma’s tenth claim under the UCL and GRANTS remand as to that claim alone. Otherwise, Thoma’s Motion to Remand is DENIED. The Court GRANTS Defendants’ Motion to Dismiss the first through ninth causes of action with leave to amend. Thoma may file an amended complaint within 21 days of the issuance of this Order.” (Ibid.) On September 20, 2023, Plaintiff filed a First Amended Class Action Complaint in the United States District Court for the Central District of California in Case No. 2:23-cv-04901 (herein, the “Federal Class Action”). (Defendants’ RJN, Ex. C.)

In the instant motion, Defendants request that the Court “stay this action pending final resolution of the Class Action currently proceeding in the Central District of California.” (Mot. at p. 13:25-26.)

Defendants cite to Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804, where the Court of Appeal noted that “[i]t is black letter law that, when a federal action has been filed covering the same subject matter as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action. 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. The California Supreme Court also has isolated another critical factor favoring a stay of the state court action in favor of the federal action, a factor which happens to be present in this case--the federal action is pending in California not some other state.” (Internal quotations and citations omitted.)

Defendants also cite to Gregg v. Superior Court (1987) 194 Cal.App.3d 134, 137, where the Court of Appeal noted that “[t]he California authorities discussing priority as between federal and state in personam actions conclude that an application for a stay is addressed to the ‘sound discretion’ of the trial court (see, e.g., Thomson v. Continental Ins. Co., supra, 66 Cal.2d at p. 746; Farmland Irrigation Co. v. Dopplmaier, supra, 48 Cal.2d at p. 215, and cases cited therein; Dodge v. Superior Court (1934) 139 Cal.App.178, 181 [33 P.2d 695]). But, where they support issuance of a stay, the assumption underlying most of these authorities is that the two related lawsuits are between the same or substantially identical parties. Indeed, Farmland expressly assumes the parties are the same: ‘When an action is brought in a court of this state involving the same parties and the same subject matter as an action already pending in a court of another jurisdiction, a stay of the California proceedings is not a matter of right, but within the sound discretion of the trial court.’” (Emphasis in original.)

Defendants assert that “[h]ere, every employee Plaintiff seeks to represent in the PAGA lawsuit is already a member of the putative class in the Class Action. Both actions are brought against the same Defendants.” (Mot. at p. 8:23-25.) As set forth above, the instant action was filed on July 11, 2023 by Plaintiff Mackenzie Anne Thoma, a.k.a. Kenzie Anne, as an aggrieved employee, and on behalf of all other aggrieved employees under the Labor Code Private Attorneys’ General Act of 2004 against Defendants VXN Group LLC, Strike 3 Holdings LLC, General Media Systems, LLC, and Mike Miller.

In the subject Federal Class Action, Plaintiff Mackenzie Anne Thoma, a.k.a. Kenzie Anne, an individual and on behalf of all others similarly situated, filed the First Amended Class Action Complaint on September 20, 2023 against the same Defendants – VXN Group LLC, Strike 3 Holdings, LLC, General Media Systems, LLC, and Mike Miller. (Defendants’ RJN, Ex. C.)

Defendants also assert that “both actions involve the same subject matter: the same alleged violations of the same underlying Labor Code provisions, except for the accrued but unpaid vacation claim recently abandoned in Class Action.” (Mot. at p. 8:25-27.)

In addition, in the PAGA cause of action, Plaintiff alleges, inter alia, that “Defendants have had a consistent policy or practice of failing to pay Plaintiff and/or Aggrieved Employees during their employment on a timely basis as per Labor Code section 204.” (Compl., ¶ 38.) Plaintiff further alleges that “Defendants had and have a policy or practice of failing to comply with Labor Code section 226, subdivision (a) by intentionally failing to furnish Plaintiff and Aggrieved Employees with itemized wage statements…” (Compl., ¶ 39.) In addition, Plaintiff alleges that “Defendants had and have a policy or practice of failing to comply with Labor Code section 226.8 as Defendants willfully misclassified Plaintiff and other aggrieved employees as independent contractors.” (Compl., ¶ 45.)

In addition, Plaintiff alleges that “Defendants, and each of them, violated, or caused to be violated, the Labor Code sections described herein, including causing Plaintiff and other Aggrieved Employees not to: be paid with the rates of pay and overtime rates of pay applicable to their employment, allowances claimed as part of the minimum wage, the regular payday designated by employer, the name of the employer, including any ‘doing business as’ names used, the name, address, and telephone number of the workers’ compensation insurance carrier, information regarding paid sick leave, and other pertinent information.” (Compl., ¶ 50.) Plaintiff further alleges that “Defendants have willfully failed to keep adequate or accurate time records including wage statements and similar payroll documents under Labor Code section 226, documents signed to obtain or hold employment under Labor Code section 432, personnel records under Labor Code section 1198.5, and time records under Labor Code section 1174.” (Compl., ¶ 56.) In addition, Plaintiff alleges that “Defendants caused Plaintiff and Aggrieved Employees not to be paid minimum wages…” (Compl., ¶ 59.)

In the First Amended Class Action Complaint in the Federal Class Action, Plaintiff alleges causes of action for (1) failure to pay overtime wages, (2) failure to pay minimum wages, (3) failure to provide meal periods, (4) failure to provide rest periods, (5) waiting time penalties, (6) wage statement violations, (7) failure to timely pay wages, and (8) failure to indemnify. (Defendants’ RJN, Ex. C.)

In the first cause of action of the First Amended Class Action Complaint (“FACC”), Plaintiff alleges, inter alia, that “by requiring Plaintiff and Class Members to, at times, work greater than eight (8) hours per workday, forty (40) hours per workweek, and/or seven (7) straight workdays without properly compensating overtime wages at the proper overtime rate of pay, Defendants, on occasion, willfully violated the provisions of the Labor Code, among others, sections 510, 1194, and applicable IWC Wage Orders, and California law.” (Defendants’ RJN, Ex. C; FACC, ¶ 59.) In the second cause of action, Plaintiff alleges that “[p]ursuant to Labor Code section 1197 and applicable Wage Orders, Plaintiff and Class Members were entitled to receive minimum wages for all hours worked or otherwise under Defendants’ control,” and that “[f]or four (4) years prior to the filing of the Complaint in this Action through the present, Defendants failed, at times, to accurately track and/or pay for all hours actually worked at their regular rate of pay that is above the minimum wage to the detriment of Plaintiff and Class Members.” (Id. at ¶¶ 69-70.) In the third cause of action, Plaintiff alleges that “[f]or four (4) years prior to the filing of the Complaint in this Action through the present, Plaintiff and Class Members were, at times, not provided complete, timely 30-minute, duty-free uninterrupted meal periods every five hours of work without waiving the right to take them, as permitted. Moreover, at times, Defendants failed to provide one (1) additional hour of pay at the Class Member’s regular rate of compensation on the occasions that Class Members were not provided compliant meal periods.” (Id. at ¶ 86.) Plaintiff alleges that “[b]y their failure to provide Plaintiff and Class Members compliant meal periods as contemplated by Labor Code section 512, among other California authorities, and failing, at times, to provide compensation for such unprovided meal periods, as alleged above, Defendants willfully violated the provisions of Labor Code section 512 and applicable Wage Orders.” (Id. at ¶ 92.)

In the fourth cause of action of the FACC in the Federal Class Action, Plaintiff alleges that “[f]or four (4) years prior to the filing of the Complaint in this Action through the present, Plaintiff and Class Members were, at times, not authorized or permitted to take complete, timely 10-minute, duty-free uninterrupted rest periods every four (4) hours of work or major fraction thereof. Moreover, at times, Defendants failed to provide one (1) additional hour of pay at the Class Member’s regular rate of compensation on the occasions that Class Members were not authorized or permitted to take compliant rest periods.” (Defendants’ RJN, Ex. C; FACC, ¶ 99.) Plaintiff alleges that “[b]y their failure, at times, to authorize and permit Plaintiff and Class Members to take rest periods contemplated by California law, and one (1) additional hour of pay at the employee’s regular rate of compensation for such unprovided rest periods, as alleged above, Defendants willfully violated the provisions of Labor Code section 226.7 and applicable Wage Orders.” (Id. at ¶ 104.) In the fifth cause of action, Plaintiff alleges that “in the three (3) years before the filing of the Complaint in this Action through the present, Defendants, due to the failure, at times, to provide overtime wages mentioned above, failed to pay Plaintiff and Class Members all wages earned prior to resignation or termination in accordance with Labor Code sections 201 or 202.” (Id. at ¶ 110.) In the sixth cause of action, Plaintiff alleges that “in the one (1) year before the filing of the Complaint in this Action through the present, Defendants failed to comply with Labor Code section 226, subdivision (a) by adopting policies and practices that resulted in their failure, at times, to furnish Plaintiff and Class Members with accurate itemized statements…” (Id. at 118.)

In the seventh cause of action in the FACC, Plaintiff alleges that “in the one (1) year before the filing of the Complaint in this Action through the present, Defendants employed policies and practices that resulted in, at times, not paying Plaintiff and Class Members in accordance with Labor Code section 204.” (Defendants’ RJN, Ex. C; FACC, ¶ 127.) In the eighth cause of action, Plaintiff alleges that “[f]or three (3) years prior to the filing of the Complaint in this Action through the present, Defendants required Plaintiff and Class Members, or some of them, to incur, at times, necessary expenditures or losses in direct consequence of the discharge of their duties or at the obedience to the directions of Defendants,” and that “[d]uring that time period…Defendants failed and refused, and still fail and refuse, at times, to reimburse Plaintiff and Class Members for those losses and/or expenditures.” (Id. at ¶¶ 133, 136.)

Defendants also assert in the motion that “[h]ere, compared to the Class Action in the Central District, this PAGA case is in its infancy.” (Mot. at p. 9:25-26.) As set forth above, in Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co., supra, 15 Cal.App.4th at page 804, the Court noted that “[i]n 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.” Defendants state that “in the Class Action, the parties have engaged in extensive motion practice, and the Central District Court has issued an order (i) mostly denying remand to State Court, (ii) dismissing Plaintiff’s first nine causes of action; (iii) remanding the UCL claim back to the original Superior Court; and (iv) dismissed the Class Action Complaint with leave to amend.” (Mot. at p. 10:3-6, citing Defendants’ RJN, Ex. B.)

Defendants also contend that “[h]ere, as in Caiafa, if this PAGA Action is not stayed, there is a risk that the federal and state courts will reach conflicting decisions, resulting in problematic res judicata and collateral estoppel issues that will need to be addressed by the courts, as rulings and judgments in either action could have preclusive effects on other class members and/or aggrieved parties.” (Mot. at p. 11:5-8.) Defendants argue that “[u]nless the Central District and this Court reach the exact same resolution of the factual and legal issues underlying these two actions, ‘unseemly conflict’ is sure to result from the conflicting decisions.” (Mot. at p. 11:21-23.)

Defendants also assert that “[t]he pendency of the Class Action in the Central District of California, as opposed to a district court outside of California, further confirms that this action should be stayed so as to avoid multiplicity of actions against Defendants over the same Labor Code violations and wage orders.” (Mot. at p. 12:2-5.) Defendants note that in Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co., supra, 15 Cal.App.4th at page 807, the Court of Appeal noted that “the federal fraud action is pending in the Southern District of California, not in some other state. Thus, the federal court is of equal convenience to the parties and witnesses as is the state court and its arbitrator. This factor is one which the Supreme Court found so important it accounted for the several earlier California decisions which appeared to make a stay of state court proceedings a matter of right not merely a matter of discretion. While reemphasizing a stay was a discretionary decision for the California trial courts not a right held by litigants who preferred the federal forum, our high court also recognized the significance of this factor in the trial court’s exercise of its discretion.”

In the opposition to the instant motion, Plaintiff argues that “California case law and statutory authority both hold that an action seeking penalties under the Private Attorney General Act…brought on behalf of the state should not be stayed and may be brought separately, regardless of whether there is a separate Wage and Hour Class Action brought.” (Opp’n at p. 1:3-6.)

Plaintiff cites to Labor Code section 2699, subdivision (g)(1), which provides that “[n]othing in this part shall operate to limit an employee’s right to pursue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this part.”[2] In Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 88, the California Supreme Court found that “Reins’s suggestion that Kim must maintain his individual claim for relief to retain PAGA standing also conflicts with plaintiffs’ recognized ability to bring stand-alone PAGA claims. Section 2699, subdivision (g)(1) states that ‘[n]othing in this part shall operate to limit an employee’s right to pursue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this part’ (italics added). This provision expressly authorizes PAGA suits brought ‘separately’ from individual claims for relief. (§ 2699, subd. (g)(1).) Indeed, many PAGA actions consist of a single cause of action seeking civil penalties. Appellate courts have rejected efforts to split PAGA claims into individual and representative components…Standing for these PAGA-only cases cannot be dependent on the maintenance of an individual claim because individual relief has not been sought.” (Emphasis in original.)

Plaintiff further asserts that “[t]he simultaneous litigation of private individual claims and PAGA claims is expressly permitted by PAGA in part because of the fundamentally different nature of these lawsuits.” (Opp’n at p. 4:16-17.) Plaintiff cites to ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 184-185, where the California Supreme Court noted that “[t]he Legislature enacted the PAGA in 2003 after deciding that lagging labor law enforcement resources made additional private enforcement necessary to achieve maximum compliance with state labor laws. The PAGA therefore empowers employees to sue on behalf of themselves and other aggrieved employees to recover civil penalties previously recoverable only by the Labor Commissioner—including those in section 558. The PAGA also creates new civil penalties, equally enforceable by aggrieved employees, for most other Labor Code violations that previously did not carry such penalties. All PAGA claims are representative actions in the sense that they are brought on the state’s behalf. The employee acts as the proxy or agent of the state’s labor law enforcement agencies and represents the same legal right and interest as those agencies—namely, recovery of civil penalties that otherwise would have been assessed and collected by the Labor Workforce Development Agency. The employee may therefore seek any civil penalties the state can, including penalties for violations involving employees other than the PAGA litigant herself.” (Internal quotations and citations omitted.)

Plaintiff also asserts that “it is well-established that a Class Action and a PAGA Action, are by law, not between the same parties. This is because, according to the California Supreme Court, every PAGA claim is a dispute between an employer and the state.” (Opp’n at p. 5:14-16, internal quotations and emphasis omitted.) In Kim v. Reins International California, Inc., supra, 9 Cal.5th at page 81, the California Supreme Court noted that “[a] PAGA claim is legally and conceptually different from an employee’s own suit for damages and statutory penalties. An employee suing under PAGA does so as the proxy or agent of the state’s labor law enforcement agencies. Every PAGA claim is a dispute between an employer and the state.” (Internal quotations, citation, and emphasis omitted].)

Plaintiff also asserts that Gregg v. Superior Court, supra, 194 Cal.App.3d 134, cited by Defendants, “was decided in 1987, nearly two decades before PAGA was enacted and is thus wholly inapplicable.” (Opp’n at pp. 10:28-11:1.)[3] In addition, Plaintiff asserts that “Defendants also rely largely on Caiafa Professional Law Corporation v. State Farm Fire & Casualty, 15 Cal. App. 4th 804 (1993). However, once again, Caiafa predates PAGA and the facts within Caiafa are therefore entirely distinguishable…” (Opp’n at p. 11:3-6.) Defendants did not file a reply in support of the motion and thus do not address this point.

Plaintiff also asserts that “the PAGA action and Class Action…plead different violations of California law.” (Opp’n at p. 6:7-8.) In the Complaint in the instant action, Plaintiff alleges that “[a]t all relevant times herein, Defendants had and have a policy or practice of failing to pay Plaintiff and Aggrieved Employees their paid time off and vacation time owed upon separation of employment as wages at their final rate of pay in violation of Labor Code section 227.3 and applicable Wage Orders.” (Compl., ¶ 17.) Plaintiff states that “the Class Action no longer alleges a cause of action for failure to pay vested vacation time in violation of Labor Code Section 227.3.” (Opp’n at p. 6:8-9.) Plaintiff asserts that “[a]nother difference is that the PAGA Action demands civil penalties be imposed for Defendants’ failure to properly maintain employment records for all aggrieved employees, whereas the Class Action does not allege this.” (Opp’n at p. 6:14-16.)

Plaintiff also asserts that “any argument…by Defendants to collateral estoppel and res judicata between the PAGA action and Class Action should be disregarded, as they have no bearing on [sic] case at hand.” (Opp’n at p. 8:15-17.) Plaintiff cites to Howitson v. Evans Hotels, LLC, supra, 81 Cal.App.5th at pages 481-482, where the Court of Appeal noted that “[t]his case (1) involves the legal issue of whether an employee who settles individual claims against the employer for alleged Labor Code violations is subsequently barred by claim preclusion from bringing a PAGA enforcement action against the employer for the same Labor Code violations when, prior to settlement, the employee could have added the PAGA claims to the existing action; and (2) requires the application of claim preclusion principles…As we explain, because the two actions involve different claims for different harms and because the state, against whom the defense is raised, was neither a party in the prior action nor in privity with the employee, we conclude the requirements for claim preclusion are not met in this case.”

The Howitson Court noted that “[p]rivity is a requirement of due process of law. In the final analysis, the determination of privity depends upon the fairness of binding [the nonparty] with the result obtained in earlier proceedings in which it did not participate. [T]he determination whether a party is in privity with another … is a policy decision. Here, the state had no interest in the subject matter of the First Lawsuit…As we have noted, the First Lawsuit involved Howitson’s individual and putative class action claims only. When Howitson accepted the section 998 Offer and settled the First Lawsuit for $1,500, it was for her individual benefit. In doing so, Howitson was not acting as a private attorney general under PAGA, benefit[ing] the public by augmenting the state’s enforcement capabilities, encouraging compliance with Labor Code provisions, and deterring noncompliance. The state, as a nonparty in the First Lawsuit, did not have an interest so similar to Howitson’s that she was acting as the state’s virtual representative in the first action.” (Howitson v. Evans Hotels, LLC, supra, 81 Cal.App.5th at pp. 490-491 [internal quotations and citations omitted].)

Plaintiff asserts that here too, “there is…no privity between Plaintiff and the State of California in the Class Action. Meaning, should this case be dismissed or stayed, the State of California will be deprived of its right to litigate Defendants’…violations of California labor laws.” (Opp’n at p. 7:8-11.) In the FACC in the Federal Class Action, the State of California is not a party. (Defendants’ RJN, Ex. C.) As set forth above, Defendants did not file a reply in support of the motion and thus do not address this point. Further, as discussed, Defendants note that in Gregg v. Superior Court, supra, 194 Cal.App.3d at page 137, the Court of Appeal found that “where they support issuance of a stay, the assumption underlying most of these authorities is that the two related lawsuits are between the same or substantially identical parties. Indeed, Farmland expressly assumes the parties are the same…”

In light of the foregoing, the Court denies Defendants’ motion to stay proceedings.

As set forth above, Defendants also filed a demurrer for plea in abatement in which they “move for an order dismissing or abating MACKENZIE ANNE THOMA’s…Complaint on the ground that there is another action pending between the parties dealing with the same subject matter as this action.”

As an initial matter, the Court notes that Defendants’ counsel’s declaration filed in support of the demurrer does not state that the parties met and conferred in advance of Defendants filing the demurrer.

Pursuant to Code of Civil Procedure section 430.41, subdivision (a), “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) Such meeting and conferring must be done in good faith with an effort to try to resolve the issues subject to the demurrer.

In light of the foregoing, the hearing on Defendants’ demurrer is continued to __ARRANGE WITH CLERK in Dept. 50.¿

Defendants are¿ordered to meet¿and confer¿with Plaintiff within 10 days of the date of this order.¿If the parties are unable to resolve the pleading issues¿or if the parties are otherwise unable to meet and confer in good faith, Defendants are to¿thereafter¿file and serve¿a declaration setting forth the efforts to meet and confer in compliance with¿Code of Civil Procedure section 430.41, subdivision (a)(3) within 15 days of this order.¿

As set forth above, the hearing on Defendants’ demurrer is continued to _______________, 2023 at 2 p.m. in Dept. 50.¿ Defendants are¿ordered to meet¿and confer¿with Plaintiff as set forth above.

[1]The Court notes that the remainder of Defendants’ moving papers were filed on October 11, 2023.

[2]Labor Code section 2698 provides that “[t]his part shall be known and may be cited as the Labor Code Private Attorneys General Act of 2004.”

[3]In Howitson v. Evans Hotels, LLC (2022) 81 Cal.App.5th 475, 481, the Court of Appeal noted that “[t]he Legislature enacted the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA)…for the sole purpose of increasing the limited capability of the state to remedy violations of the Labor Code.” (Internal quotations omitted, emphasis added.)

Superior Court of California

County of Los Angeles

Department 50