Preview
"FILED
1 LEWIS BRISBOIS BISGAARD & SMITH LLP
DEREK S. SACHS, SB# 253990 ENDORSED
2 E-Mail: Derek.Sachs@lewisbrisbois.com
2850 Gateway Oaks Drive, Suite 450 ii'iOCT-8 PM 3:39
3 Sacramento, California 95833
Telephone: 916.646.8221
4 Facsimile: 916.564.5444 „ OF C A L I . ' 0 : - ^ N I A
5 JEFFREY S. RANEN, SB# 224285
E-Mail: Jeffi-ey.Ranen@lewisbrisbois.com
6 JOSHUA CARLON, SB# 263838
E-Mail: Joshua.Carlon@lewisbrisbois.com
7 221 North Figueroa Street, Suite 1200
Los Angeles, Califomia 90012
8 Telephone: 213.250.1800
Facsimile: 213.250.7900
9
Attorneys fbr Defendant Lewis Brisbois Bisgaard
10 & Striith LLP
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF SACRAMENTO
14
15 YAMIN T. SCARDIGLI, CASE NO. 34-2012-00134706
16 Plaintiff, LEWIS BRISBOIS BISGAARD & SMITH
LLP'S NOTICE OF MOTION AND
17 vs. MOTION TO BIFURCATE PLAINTIFF'S
INDIVIDUAL CLAJDVIS FROM
18 LEWIS BRISBOIS BISGAARD & SMITH PLAINTIFF'S REPRESENTATIVE
LLP, CLAIMS AT TRIAL
19
Defendaint. [Filed concUrreiritly with Declaration of Joshua
20 Carlon]
21 Date: October 31, 2014
Time: 9:30 a.m.
22 Dept.: 47
23 Action Filed: November I , 2012
Trial Date: December 1, 2014
24
25
26
27
28 4824-8665-6031.1
LEWIS
BRISBOIS DEFENDANT LEWIS BRJSBOIS BISGAARD & SMITH LLP'S NOTTCE OF MOTION AND MOTION TO
BBGAARC) BIFURCATE PLATNTIFF'S INDIVIDUAL CLAIMS FROM PLAJNTIFF'S REPRESENTATIVE CLAIMS AT
ATTOHNEW AT LAW TRL\L
1 TO PLAINTIFF AND HER ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on October 31, 2014, at 9:30 a.m., or as soon thereafter as
3 the matter may be heard, in Department 47 of the above-entitled Couil, located at 720 9th Street,
4 6th Floor, Sacramento, CA 95814, Defendant Levvis Brisbois Bisgaard & Smitii LLP
5 ("Defendant") shall and hereby does move this Court for an Order Bifurcating Plaintiffs
6 Individual Claknsfi-omPlaintiffs Representative Claims at Trial pursuant to Califomia Code of
7 Civil Procedure sections 598, 607, and 1048.
8 The Motion is based upon this Notice, the attached Memorandum of Points and
9 Authorities, the Declaration of Joshua Carlon, and upon such oral and/or documentary evidence as
10 to be presented at, or before, the time of hearing.
11 Pursuant to Local Rule 1.06 (A), the court will make a; tentative ruling on the merits of this
12 matter by 2:00 p.m., the court day before the hearing. The complete text ofthe tentative rulings for
13 fhe department may be downloaded off the court's website. If the party does not have online
14 access, they rriay call the dedicated phone number for the department as referenced in the local
15 telephone directoiy between the hours of 2:00 p.ni. arid 4:00 p.m. on the court day before the
16 hearing and receive the tentative ruling. If you do not call the court and the opposing party by 4:00
17 p.m. the court day before the hearing, no hearing will be held.
18
19
20 DATED: October 8, 2014 Respectfully submitted,
21
LEWIS BRISBOIS BISGAARD & SMITH LLP
22
23 \
By:
24 Jeffrey S. Ranen
25 DeWk S. Sachs
Joshua Carlon
26 Attomeys for Defendant Lewis Brisbois Bisgaard
& Smith LLP
27
4824-8665-6031.1
28
LEWIS DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BRISBOIS BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT
BISGAARD TRL^LL
&S^/IIHllP
ATTOnNEWAXlAVrf
1 TABLE OF CONTENTS
2 Page
3 L INTRODUCTION 1
4 IL STATEMENT OF FACTS 2
5 m. ARGUMENT 3
6 A. The Court May Order Bifiarcation and Separate Trial by the Court 3
7 B. Plaintiffs Standing as an Aggrieved Employee Is a Threshold Issuehe 5
8 C. Bifurcation Here Promotes Judicial Economy 6
9 A. Defendant WiU he Prejudiced If Bifurcation Is Denied aud No Prejudice
Results from Bifurcation 8
10
iV. CONCLUSION : 9
II
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DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT
TRIAL
TABLE OF AUTHORITIES
COURT CASES
Caliber Bodyworks Inc. v. Super. Ct,
(2005) 134 Cal. App. 4th 365 ; 5
4
Cohn V. Bugas
5 (1974) 42 Cal.App.3d 381 4
6 Douglass V. Board of Medicine Ouality Assurance
(1983) 141 Cal.App.3d 645 3
7
Finley v. Superior Court of Orange County
8 (2000) 80 Cal.App.4th 1152 3
9 Foreman & Clark Corporation v. Fallon
(1971) 3 Cal.3d 875 4
10
Grappo v. Coventry Financial Corp.
11 (1991) 235 Cal.App.3d 496 4
12 Hibbs-Rines v. Seagate Technologies, LLC,
(N.D. Cal. Mar. 2, 2009) 2009 U.S. Dist. LEXIS 19283 5, 7
13
McLellan v. McLellan
14 (1972) 23 Cal.App.3d 343 4
15 Plaza Tulare v. Tradewell Stores, Inc.
(1989) 207 Cal.App.3d 522 3
16
17 STATE STATUTORY AUTHORITIES
Code Civ. Proc, § 598 2, 3,6
18
Code Civ. Proc, § 607 2, 3
19
Code Civ. Proc, § 1048 3,4,6
20
Lab. Code, § 2699(c) 5
21
22 ADDITIONAL AUTHORITIES
Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
23 2001) • 4
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DEFENDANT LEWIS BRJSBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT
TRIAL
1 L INTRODUCTION
2 Defendant Lewis Brisbois Bisgaard & Smith LLP ("Defendant or LBBS") hereby moves
3 this Court for an order bifurcating the issue of Plaintiff Yanain ScardigH's ("Plaintiff') individual
4 claims under the Califomia Equal Pay Act from her representative claims under Private Attorney
5 General Act ("PAGA") at trial.
6 This case arises out of Plaintiffs claim that her former employer, LBBS, paid its
7 Califomia female associate attomeys less than comparable male associate attomeys in violation
8 of the Califomia Equal Pay Act ("Califomia EPA"). By way of the instant action. Plaintiff
9 purports to not only represent herself but also all other female associate attomeys that worked for
10 LBBS in Californiafi-omAugust 2011 to present pursuant to PAGA.
11 In order to pursue claims under PAGA however, Plaintiff must first show that she
12 herself is an "aggrieved employee" (i.e. that she suffered one the Labor Code violations she
13 alleges during the relevant one-year statute of limitations period). Plaintiff, however, is not an
14 aggrieved employee as a matter of law. No comparable attomeys existed during her employinent
15 at LBBS Sacramento for her to compare herself to. In addition, all of LBBS Sacramento's salary
16 decisions regarding Plaintiff were made based on her experience (or lack thereof), merit and
17 perfoirnance, and not her gender.
18 Only if Plaintiff demonstrates that she is herself an aggrieved employee can she then
19 represent other individuals pursuant to PAGA. As a result. Plaintiffs standing as an aggrieved
20 employee is a threshold issue, and resolution of tliis issue prior to corisideration of Plaintiff s
21 niassive representative PAGA claims is proper.
22 It is clear from the evidence that no female associates were discriminated against on the
23 basis of gender. In fact, overall in Califomia, LBBS Sacramento paid its female associates more
24 than comparably experienced male associates. Nonetheless, a trial on this issue across all
25 Califomia associates will require individual inquiries, and essentially individual trials, regarding
26 every single female associate attomey employed with Defendant over more than three years'
27 worth of applicable time. This will necessitate the analysis of significant additional evidence
28
I
DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTD-F'S REPRESENTATIVE CLAIMS AT
TRIAL
1 relating to hundreds of attomeys firom LBBS' Califomia offices and the testimony of dozens if
2 additioiial witnesses. On the contrary, trial regarding Plaintiffs individual California EPA claim
3 involves analysis of only the Sacramento office of Defendant, and a limited scope of evidence.
4 As a result, judicial economy is clearly served via bifurcation here.
5 For these reasons, Defendant respectfully requests that the trial on Plaintiffs individual
6 claims be severedfi-omthe trial ori her representative PAGA claims. If, as is likely, Plaintiff'
7 carmot show that she is an aggrieved employee, severing her individual claimsfi-omthe
8 representative claims will save the Court, the jury, and the Parties great time and expense.
9 Furtheir, Plainfiff will not be prejudiced by conducting the trial in this matter since if Plaintiff
10 prevails and is able to show able is an "aggrieved employee," she caii then simply proceed with
11 trying the remainder of her PAGA case.
12 II. STATEMENT OF FACTS
13 On November 1, 2012, Plaintiff, as an individual, filed her Complaint in this action
14 against Defendants Lewis Brisbois Bisgaard & Smith LLP, Sophia Ackeii, and Heidi Strunk. On
15 April 9, 2013, Plaintiff filed a request for disrriissal of Defendants Sophia Acken and Heidi
16 Strunk. LBBS's Answer was filed on May 10, 2013.
17 Plaintiff here alleges that Defendant pays its Califomia female associate attorneys less
18 than its comparable rnale associate attomeys. This is patently false. LBBS pays its associates
19 salaries within a relatively narrow bandwidth commensurate with their years of legal experience.
20 Startirig salaries are based on experience, including practice area, office needs and market
21 factors. Raises and bonuses are based on experience, job performance, realization rate,
22 profitability, billable hours, and attitude and work relationships. Gender is not a consideration or
23 factor.
24 On October 2, 2014, Defendant's counsel sent an email to Plaintiffs counsel seeking a
25 stipulation to bifurcate Plaintiffs individual claimsfiromher representative claims for tlie
26 reasons set forth herein. (Declaration of Joshua Carlon ["Carlon Decl."] ^ 3, 5, Exs. A, C.)
27 Plaintiff refiised to so stipulate. (Carion Decl. ^4, 6 Exs. B, D.) As a result, Defendant's counsel
28
DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT
TRIAL
1 informed Plaintiffs counsel that Defendant would be filing this Motion. (Carlon Decl. If 5, Ex.
2 C.)
3 in. ARGUMENT
4 A. The Court May Order Bifurcation and Separate Trial by the Court
5 The trial court is granted broad discretion in determining the order or proof in cases
6 pursuant to California Code of Civil Procedure secfion 607. Douglass v. Bd. of Med. Quality
7 Assurance (1983) 141 Cal.App.3d 645, 658-59. Bifurcafion of issues at trial here is expressly
8 authorized under Califomia Code of Civil Procedure sections 598 and 1048(b).
9 The bifurcation statute, Califomia Code ofCivil Procedure section 598, provides:
10 Bifurcated trial of issues.
The court may, when the convenience of witnesses, the ends of
11 justice, or the economy and efficiency of handling the litigation
would be promoted thereby, on motion of a party, after notice and
12 hearing, make aii order, no later than the close of pretrial
conference in cases in which such pretrial conference is to be held,
13 or in other cases, no later than 30 days before the trial date, that the
trial of any issue or any part thereof shall precede the trial of any
14 other issue or any part thereof in the case, except for special
defenses which may be fried first.... The court, on its own motion,
15 may make such art order at £iny time. Where trial of the issue of
liability as to all causes of action precedes the trial of other issues
16 or parts thereof, and the decision of the coiu-t, or the verdict ofthe
jury upon such issue so tried is in favor of any party on whom
17 liability is sought to be imposed, judgment in favor of such party
shall thereupon be entered and no trial of other issues in the action
18 as against such party shall be had....
19 This bifiircatioti provision was amended in 1977 to "expand the flexibility of courts to
20 handle particular cases as expeditiously as possible." Plaza Tulare v. Tradewell Stores, Inc.
21 (1989) 207 Cal.App.3d 522, 524. Its main objective, "allowiilg determination of the issue of
22 liability before other issues, is avoidance ofthe waste oftimeand money caused by the
23 unnecessary trial of damage questions in cases where the liability issue may be resolved against
24 the Plaintiff." Id. The decision to bifurcate is committed to the sound discretion of the trial
25 court. Finley v. Superior Court of Orange Coimty (2000) 80 Cal. App.4th 1152. The Court also
26 has the authority to order that special defenses be determined first. Id. at 1162. Most
27 import.antiy,"[i]t has long been held that special defenses which abaite or bar the claim of the
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DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDFVIDUAL CLAIMS FROM PLAINTIFF'S RJEPRESENTATIVE CLAIMS AT
TRIAL
1 plaintiff may be tried before other issues, for a decision in the defendant's favor may render
2 unnecessary the effort and expense of a complete trial." Cohn v. Bugas (1974) 42 Cal.App.3d
3 381,389.
4 Code of Civil Procedure section 1048(b) also provides authority to sever and tty first any
5 issue. It provides, in relevant part, as follows:
6 The court, in furtherance of convenience or to avoid prejudice, or
when separate trials will be conducive to expedition and economy,
7 may order a separate trial of any cause of action, including a cause
ofaction asserted in a cross-complaint, or of any separate issue or
8 of any number of causes of action or issues, preserving the right of
trial by jury required by the Constitution or a statute of this State or
9 the Uiiited States.
10 Code ofCivil Procediire section 1048(b) (emphasis added).
11 Under this provision, trial courts have "broad discretion" to bifiu-cate trials and
12 "determine the order of proof in the interests of judicial economy." Grappo v. Coventry
13 Financial Corp. (1991) 235 Cal.App.3d 496, 504; see also McLellan v. McLellan (1972) 23
14 Cal.App.3d 343, 353 (providing that "it is within the sound discretion of the court to define
15 issues and direct the order of proof'). "The procedure is hot lurdted to separate trials of liaibility
16 and damages; nor is it limited to dividing a case info only two parts. Indeed, 'trifurcation or
17 multifiircation' can be ordered." Weil & Brown, Cal. Practice Guide: Civil Procedure Before
18 Trial (The Rutter Group 2001) T| 12:406. "The major objective of bifurcated trials is to expedite
19 and simplify the presentation of evideiice." Foreman & Clark Corporation v. Fallon
20 (1971) 3 Cal.3d 875, 888.
21 Here, for the reasons stated more fully below, bifurcation of Plaintiff s individuals
22 claims, mcluding determining whether or not Plaintiff was an "aggrieved employee," firom
23 Plaintiffs representative claims brought on behalf of over 150 other employees througliout
24 Califomia is proper because: (1) Plaintiffs individual claims are a threshold to her representative
25 PAGA claims; (2) resolution of Plaintiff s individual claims in Defendant's favor would render
26 consideration of her representative PAGA claims uimecessary; (3) bifiircation has the potential to
27 substantially reduce the length of trial and thereby promote judicial efficiency and economy; (4)
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4
DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT
TRIAL
1 denial of bifiircation vnll prejudice Defendant; and (5) bifiircation does not result in prejudice to
2 Plaintiff.
3 B. Plaintiffs Standing as an Aggrieved Employee Is a Threshold Issue
4 Here, Plaintiffs operative Complaint alleges claims pursuant to PAGA. The Califomia
5 legislature adopted PAGA "to prescribe a civil penalty for existing Labor Code sections for
6 which no civil penalty has otherwise been established, and to allow aggrieved employees . . . to
7 bring a civil action to collect civil penalties for Labor Code violations previously only available
8 in eriforcemerit actions initiated by the state's labor law enforcement agencies." Caliber
9 Bodyworks Inc. v. Super. Ct., (2005) 134 Cal. App. 4th 365, 374.
10 In order to proceed with her PAGA claims. Plaintiff must first show ishc is an aggrieved
11 employee. See Labor Code section 2699(c) ("aggrieved employee" means any person who was
12 employed by the alleged violator arid agamst whom one or more ofthe alleged violations was
13 committed."); see also Hibbs-Rines v. Seagate Technologies, LLC, (N.D. Cal. Mar. 2, 2009)
14 2009 U.S. Dist. LEXIS 19283, *12 (an employee must have suffered Labor Code violations in
15 order to be considered "aggrieved"); Amalgamated Transit Union, Local 1756, AFLCIO v.
16 Superior Court (First Transit, Inc. (2009) 46 Cal. 4'*' 993,1005 ("a plaintiff has standing to bring
17 aft action under the Labor Code Private Attomeys General Act of 2004 only if the plaintiff is an
18 'aggrieved employee'.").
19 As such, in order to be entitled to collect civil penalties with respect to any of her PAGA
20 claims (either on her ovm behalf, or on behalf of the PAGA group). Plaintiff here must prove that
21 she is an aggrieved employeefirst—^tlieDefendant actually discriminated against her and paid
22 her less than comparable male associates on the basis of gender. If Plaintiff cannot demonstrate
23 this, none of her evidence with respect to Labor Code violations allegedly suffered by other
24 employees matters. See Hibbs-Rines, 2009 U.S. Dist. LEXIS 19283, at "^12 (if a plaintiff cannot
25 prove that the defendant violated the Califomia Labor Code with respect to each eriiployee
26 included ui the complaint as an "aggrieved employee," no penalties should be assessed under
27 PAGA).
28
DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT
TRIAL
1
2 As a result. Plaintiffs individual claims are a threshold issue in this matter, and should be
3 resolved first.
4 C. Bifurcation Here Promoteis Judicial Economy
5 As noted above, Code of Civil Procedure sections 598 and 1048 allow this Court to order
6 bifiircation in furtherance of expedition and economy. Here, "expedition and economy" is best
7 served by bifurcating the Plaintiffs individual claims from Plaintiffs representative clairhs
8 considering that the individual aspect of this case will be tried relatively quickly when compared
9 to the representative claims, which could take several weeks to present to the jury, and which
10 will be unnecessary if Plaintiff does not prevail on her individual claims. (Decl. of Carlon, T|l 1 -
11 12.)
12 The economic benefitsfirombifurcation are evident when considering the evidence that
13 will be presented for Plaintiffs mdividual claim and her representative claims. The evidence of
14 liability with respect to Plaintiff individually is separate arid distinct from the evidence
15 conceming other employees in the PAGA group that Pladntiff seeks to represent. As raised in
16 Defendant's Motion for Suminary Judgment, and conceded by Plaintiff in her Opposition, in
17 considering Plaintiffs individual Califomia EPA claim the scope of inquiry and comparison is
18 limited to those who worked at the same establishment as Plaintiff - LBBS Sacramento. See
19 Plaintiffs Opposition to Defendant's Motion for Summary Adjudication at 2:5-9.'
20 The liability evidence with respect to Plaintiffs individual violations will largely consist
21 of an analysis of (1) Plaintiffs prior experience before joining LBBS Sacramerito; (2) Plaintiffs
22 responsibilities and work performance while employed at LBBS Sacramento; (3) the prior
23 experience of male associates at LBBS Sacramento that Plaintiff alleges were comparable to
24 herself; (4) the work responsibilities and work performance of other employees at LBBS
25
26 ' This portion of the Opposition stated that Defendant dedicated "over two full pages of its
motion to the assertion - which is not even disputed by Plaintiff - that the inquiry . . . should be
27 limited to operations of Defendant's Sacramento office."
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DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT
TRIAL
1 Sacramento that Plaintiff alleges were comparable to herself; (5) LBBS Sacramento's salary
2 decisions relating to Plaintiff; and (6) LBBS Sacramento's salary decisions relating to other
3 employees Plaintiff alleges were comparable. (Decl. of Carlon, ^9.) Defendant anticipates
4 callirig a handfiil of witnesses, including a representative of Defendanf s compensation
5 committee and the managing partner of LBBS SacranientO. (Decl. of Carlon, ^ 7.)
6 Meanwhile, Plaintiffs representative claims argue that LBBS pays its female associates
7 less than comparable males across all of Califomia. Unlike a class action, PAGA claims do not
8 involve consideration of a common issue in order to detennine liability on a class wide basis.
9 Instead, a PAGA claim necessitates the consideration of each separate potential aggricjved
10 employee individually. There have been over 150 female associates employed by LBBS across
11 Califomia in the relevant time period for Plaintiffs PAGA claim. (Decl. of Carlon, ^ 14.) As a
12 result, we ariticipate that Plaintiff will seek to introduce evidence regarding: (1) the prior work
13 history of all female associates responsibilities and allegedly comparable male associates; (2)
14 information regarding the salaries and salary decisions for female associates in California as well
15 as coniparable male associates in Califomia; (3) the work responsibititles,duties, and
16 performance of associates in Califomia. (Decl. of Carlon, ^ 10.) In opposition. Defendant will
17 need to introduce evidence regarding the salary practices at numerous offices outside of
18 Sacramento. Defendant also anticipates the need to call numerous additional witnesses in
19 defense of this claim, including managing partners ofall of LBBS' Califomia offices, additional
20 menibers of the compensation committee, and potentidly some associate attorneys. (Decl. of
21 Carlon, ll 8.)
22 Information relating to these categories for employees outside of LBBS Sacramento is
23 completely irrelevant to Plaintiffs claims. Conversely, Plaintiffs own records are irrelevant to
24 violations allegedly suffered by PAGA group members, as those individuals' records and
25 testimony must be used to prove whether each employee suffered a Labor Code violation.
26 Hibbs-Rines, 2009 U.S. Dist. LEXIS 19283, *11 (N.D. Cal. Mar. 2,2009) (plaintiffs are required
27 to "prove Labor Code violations with respect to each and every individual on whose behalf
28
DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION ANID MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT
TRIAL
I plaintiff seeks to recover civil penalties"). The Court can, and should, take advantage of this
2 natural division ofthe evidence and try the individual and representative issues separately.
3 During meet and confer efforts prior to the filing of this Motion, Plaintiffs counsel
4 indicated that, because Plaintiff is alleging "intentional" violations of the Califomia EPA,
5 Plaintiff will seek to introduce some evidence regarding other employees in other offices in
6 support of her individual claims. Even if this is permitted, the evidence would not be nearly as
7 extensive as requured for the PAGA claims, which would require essentially individual trials
8 regardmg each associate Plaintiff intends to represent.
9 D. Defendant Will be Prejudiced If Bifurcation Is Denied arid No Prejudice
Results from Bifurcation
10
11 Should bifurcation be denied. Defendant m\l be forced to endure an extremely costly and
12 invasive multi-week trial that might ultimately be determined to have been completely
13 uimecessary. (Decl. of Carlon, UK 11,12.) The Court and Plaintiffs counsel will similarly be
14 prejudiced, as numerous weeks of time would potentially be wasted considering whether or not
15 any aggrieved employees exist other than Plauitiff. Contrarily, there would be absolutely no
16 prejudice to any party and only upside from separate trials. If Defendant prevails on the
17 individual phase, then all parties, the Court and jurors are spared from having to spend the time
18 arid effort required for trial ofthe representative claims.
19 If Plaintiff prevails on fhe individual phase, then she can siriiply proceed with putting on
20 the rest of heir case. Even if, as Plaintiff has asserted, she will seek to introduce evidence of
21 discrimination at other locations in support of her "intent" argument, there is no reason why this
22 limited evidence camiot be presented as part ofa limited individual frial, and then expounded
23 upon as appropriate should this matter proceed to representative claims. As a result, there is
24 absolutely no benefit to any party or the Courtfi-omdenying bifurcation, and should bifurcation
25 be denied, great prejudice will result.
26 ///
27 ///
28
DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT
TRIAL
1 IV. CONCLUSION
2 For each of the reasons set forth herein. Defendant respectfully requests that its Motion
3 be granted m its entirety, and that Plaintiffs individual claims be tried before her representative
4 clairhs.
5
6 DATED: October 8, 2014 Respectfiilly submitted,
7 LEWIS BRISBOIS BISGAARD & SMITH LLP
8
9
By:
10 fey S. Ranen
; S. Sachs
11 Joshua Carlon
12 Attorneys for Defendant Lewis Brisbois Bisgaard
& Smith LLP
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DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO
BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAlMSlAT
TRIAL
1 CALIFORNIA STATE COURT PROOF OF SERVICE
2 Yamin Scardigli v. Lewis Brisbois Bisgaard & Smith LLP - File No. 8055.909
3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
4 At fhe time of service, I was over 18 years of age and not a party to the action. My
business address is 221 North Figueroa Street, Suite 1200, Los Angeles, CA 90012.
5
Ori October 8, 2014,1 served the followmg document(s): LEWIS BRISBOIS
6 BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE
PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE
7 CLAIMS AT TRIAL
8 I served the docuriients on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):
9
William J. Gorharii, III, Esq; Attorneys for Plaintiff, Yamin T. Scardigli
10 Nicholas J. Scardigli, Esq.
Mayall Hurley P.C,
11 2453 Grand Canal Boulevard
Stockton, CA 95207
12 Telephone No.: (209) 477-3833
FacsunileNo.: (209) 473-4818
13
The documents were served by the following rnearis:
14
Hi (BY MESSENGER SERVICE) I served the docmnents by placing them in an envelope or
15 package addressed to the persons at the addresses listed above and providing them tb a
professional messenger service. (A proof of service executed by the messenger will be
16 fi led in compliance with the Code of Civil Procedure.)
17 I declare under penalty of perjury under the laws of the State of California tliat the
foregoing is tme and correct.
18
Executed on October 8, 2014, at Los Angeles, Califomia.
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21 Qexandra Martine:
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LEWIS
BRISBOIS
BISGAARD
&SMIHL1P
AnCtfJNFiS AI LAW
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"FILED 1 LEWIS BRISBOIS BISGAARD & SMITH LLP DEREK S. SACHS, SB# 253990 ENDORSED 2 E-Mail: Derek.Sachs@lewisbrisbois.com 2850 Gateway Oaks Drive, Suite 450 ii'iOCT-8 PM 3:39 3 Sacramento, California 95833 Telephone: 916.646.8221 4 Facsimile: 916.564.5444 „ OF C A L I . ' 0 : - ^ N I A 5 JEFFREY S. RANEN, SB# 224285 E-Mail: Jeffi-ey.Ranen@lewisbrisbois.com 6 JOSHUA CARLON, SB# 263838 E-Mail: Joshua.Carlon@lewisbrisbois.com 7 221 North Figueroa Street, Suite 1200 Los Angeles, Califomia 90012 8 Telephone: 213.250.1800 Facsimile: 213.250.7900 9 Attorneys fbr Defendant Lewis Brisbois Bisgaard 10 & Striith LLP 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SACRAMENTO 14 15 YAMIN T. SCARDIGLI, CASE NO. 34-2012-00134706 16 Plaintiff, LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND 17 vs. MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAJDVIS FROM 18 LEWIS BRISBOIS BISGAARD & SMITH PLAINTIFF'S REPRESENTATIVE LLP, CLAIMS AT TRIAL 19 Defendaint. [Filed concUrreiritly with Declaration of Joshua 20 Carlon] 21 Date: October 31, 2014 Time: 9:30 a.m. 22 Dept.: 47 23 Action Filed: November I , 2012 Trial Date: December 1, 2014 24 25 26 27 28 4824-8665-6031.1 LEWIS BRISBOIS DEFENDANT LEWIS BRJSBOIS BISGAARD & SMITH LLP'S NOTTCE OF MOTION AND MOTION TO BBGAARC) BIFURCATE PLATNTIFF'S INDIVIDUAL CLAIMS FROM PLAJNTIFF'S REPRESENTATIVE CLAIMS AT ATTOHNEW AT LAW TRL\L 1 TO PLAINTIFF AND HER ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on October 31, 2014, at 9:30 a.m., or as soon thereafter as 3 the matter may be heard, in Department 47 of the above-entitled Couil, located at 720 9th Street, 4 6th Floor, Sacramento, CA 95814, Defendant Levvis Brisbois Bisgaard & Smitii LLP 5 ("Defendant") shall and hereby does move this Court for an Order Bifurcating Plaintiffs 6 Individual Claknsfi-omPlaintiffs Representative Claims at Trial pursuant to Califomia Code of 7 Civil Procedure sections 598, 607, and 1048. 8 The Motion is based upon this Notice, the attached Memorandum of Points and 9 Authorities, the Declaration of Joshua Carlon, and upon such oral and/or documentary evidence as 10 to be presented at, or before, the time of hearing. 11 Pursuant to Local Rule 1.06 (A), the court will make a; tentative ruling on the merits of this 12 matter by 2:00 p.m., the court day before the hearing. The complete text ofthe tentative rulings for 13 fhe department may be downloaded off the court's website. If the party does not have online 14 access, they rriay call the dedicated phone number for the department as referenced in the local 15 telephone directoiy between the hours of 2:00 p.ni. arid 4:00 p.m. on the court day before the 16 hearing and receive the tentative ruling. If you do not call the court and the opposing party by 4:00 17 p.m. the court day before the hearing, no hearing will be held. 18 19 20 DATED: October 8, 2014 Respectfully submitted, 21 LEWIS BRISBOIS BISGAARD & SMITH LLP 22 23 \ By: 24 Jeffrey S. Ranen 25 DeWk S. Sachs Joshua Carlon 26 Attomeys for Defendant Lewis Brisbois Bisgaard & Smith LLP 27 4824-8665-6031.1 28 LEWIS DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BRISBOIS BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT BISGAARD TRL^LL &S^/IIHllP ATTOnNEWAXlAVrf 1 TABLE OF CONTENTS 2 Page 3 L INTRODUCTION 1 4 IL STATEMENT OF FACTS 2 5 m. ARGUMENT 3 6 A. The Court May Order Bifiarcation and Separate Trial by the Court 3 7 B. Plaintiffs Standing as an Aggrieved Employee Is a Threshold Issuehe 5 8 C. Bifurcation Here Promotes Judicial Economy 6 9 A. Defendant WiU he Prejudiced If Bifurcation Is Denied aud No Prejudice Results from Bifurcation 8 10 iV. CONCLUSION : 9 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT TRIAL TABLE OF AUTHORITIES COURT CASES Caliber Bodyworks Inc. v. Super. Ct, (2005) 134 Cal. App. 4th 365 ; 5 4 Cohn V. Bugas 5 (1974) 42 Cal.App.3d 381 4 6 Douglass V. Board of Medicine Ouality Assurance (1983) 141 Cal.App.3d 645 3 7 Finley v. Superior Court of Orange County 8 (2000) 80 Cal.App.4th 1152 3 9 Foreman & Clark Corporation v. Fallon (1971) 3 Cal.3d 875 4 10 Grappo v. Coventry Financial Corp. 11 (1991) 235 Cal.App.3d 496 4 12 Hibbs-Rines v. Seagate Technologies, LLC, (N.D. Cal. Mar. 2, 2009) 2009 U.S. Dist. LEXIS 19283 5, 7 13 McLellan v. McLellan 14 (1972) 23 Cal.App.3d 343 4 15 Plaza Tulare v. Tradewell Stores, Inc. (1989) 207 Cal.App.3d 522 3 16 17 STATE STATUTORY AUTHORITIES Code Civ. Proc, § 598 2, 3,6 18 Code Civ. Proc, § 607 2, 3 19 Code Civ. Proc, § 1048 3,4,6 20 Lab. Code, § 2699(c) 5 21 22 ADDITIONAL AUTHORITIES Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 23 2001) • 4 24 25 26 27 28 11 DEFENDANT LEWIS BRJSBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT TRIAL 1 L INTRODUCTION 2 Defendant Lewis Brisbois Bisgaard & Smith LLP ("Defendant or LBBS") hereby moves 3 this Court for an order bifurcating the issue of Plaintiff Yanain ScardigH's ("Plaintiff') individual 4 claims under the Califomia Equal Pay Act from her representative claims under Private Attorney 5 General Act ("PAGA") at trial. 6 This case arises out of Plaintiffs claim that her former employer, LBBS, paid its 7 Califomia female associate attomeys less than comparable male associate attomeys in violation 8 of the Califomia Equal Pay Act ("Califomia EPA"). By way of the instant action. Plaintiff 9 purports to not only represent herself but also all other female associate attomeys that worked for 10 LBBS in Californiafi-omAugust 2011 to present pursuant to PAGA. 11 In order to pursue claims under PAGA however, Plaintiff must first show that she 12 herself is an "aggrieved employee" (i.e. that she suffered one the Labor Code violations she 13 alleges during the relevant one-year statute of limitations period). Plaintiff, however, is not an 14 aggrieved employee as a matter of law. No comparable attomeys existed during her employinent 15 at LBBS Sacramento for her to compare herself to. In addition, all of LBBS Sacramento's salary 16 decisions regarding Plaintiff were made based on her experience (or lack thereof), merit and 17 perfoirnance, and not her gender. 18 Only if Plaintiff demonstrates that she is herself an aggrieved employee can she then 19 represent other individuals pursuant to PAGA. As a result. Plaintiffs standing as an aggrieved 20 employee is a threshold issue, and resolution of tliis issue prior to corisideration of Plaintiff s 21 niassive representative PAGA claims is proper. 22 It is clear from the evidence that no female associates were discriminated against on the 23 basis of gender. In fact, overall in Califomia, LBBS Sacramento paid its female associates more 24 than comparably experienced male associates. Nonetheless, a trial on this issue across all 25 Califomia associates will require individual inquiries, and essentially individual trials, regarding 26 every single female associate attomey employed with Defendant over more than three years' 27 worth of applicable time. This will necessitate the analysis of significant additional evidence 28 I DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTD-F'S REPRESENTATIVE CLAIMS AT TRIAL 1 relating to hundreds of attomeys firom LBBS' Califomia offices and the testimony of dozens if 2 additioiial witnesses. On the contrary, trial regarding Plaintiffs individual California EPA claim 3 involves analysis of only the Sacramento office of Defendant, and a limited scope of evidence. 4 As a result, judicial economy is clearly served via bifurcation here. 5 For these reasons, Defendant respectfully requests that the trial on Plaintiffs individual 6 claims be severedfi-omthe trial ori her representative PAGA claims. If, as is likely, Plaintiff' 7 carmot show that she is an aggrieved employee, severing her individual claimsfi-omthe 8 representative claims will save the Court, the jury, and the Parties great time and expense. 9 Furtheir, Plainfiff will not be prejudiced by conducting the trial in this matter since if Plaintiff 10 prevails and is able to show able is an "aggrieved employee," she caii then simply proceed with 11 trying the remainder of her PAGA case. 12 II. STATEMENT OF FACTS 13 On November 1, 2012, Plaintiff, as an individual, filed her Complaint in this action 14 against Defendants Lewis Brisbois Bisgaard & Smith LLP, Sophia Ackeii, and Heidi Strunk. On 15 April 9, 2013, Plaintiff filed a request for disrriissal of Defendants Sophia Acken and Heidi 16 Strunk. LBBS's Answer was filed on May 10, 2013. 17 Plaintiff here alleges that Defendant pays its Califomia female associate attorneys less 18 than its comparable rnale associate attomeys. This is patently false. LBBS pays its associates 19 salaries within a relatively narrow bandwidth commensurate with their years of legal experience. 20 Startirig salaries are based on experience, including practice area, office needs and market 21 factors. Raises and bonuses are based on experience, job performance, realization rate, 22 profitability, billable hours, and attitude and work relationships. Gender is not a consideration or 23 factor. 24 On October 2, 2014, Defendant's counsel sent an email to Plaintiffs counsel seeking a 25 stipulation to bifurcate Plaintiffs individual claimsfiromher representative claims for tlie 26 reasons set forth herein. (Declaration of Joshua Carlon ["Carlon Decl."] ^ 3, 5, Exs. A, C.) 27 Plaintiff refiised to so stipulate. (Carion Decl. ^4, 6 Exs. B, D.) As a result, Defendant's counsel 28 DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT TRIAL 1 informed Plaintiffs counsel that Defendant would be filing this Motion. (Carlon Decl. If 5, Ex. 2 C.) 3 in. ARGUMENT 4 A. The Court May Order Bifurcation and Separate Trial by the Court 5 The trial court is granted broad discretion in determining the order or proof in cases 6 pursuant to California Code of Civil Procedure secfion 607. Douglass v. Bd. of Med. Quality 7 Assurance (1983) 141 Cal.App.3d 645, 658-59. Bifurcafion of issues at trial here is expressly 8 authorized under Califomia Code of Civil Procedure sections 598 and 1048(b). 9 The bifurcation statute, Califomia Code ofCivil Procedure section 598, provides: 10 Bifurcated trial of issues. The court may, when the convenience of witnesses, the ends of 11 justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and 12 hearing, make aii order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, 13 or in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any 14 other issue or any part thereof in the case, except for special defenses which may be fried first.... The court, on its own motion, 15 may make such art order at £iny time. Where trial of the issue of liability as to all causes of action precedes the trial of other issues 16 or parts thereof, and the decision of the coiu-t, or the verdict ofthe jury upon such issue so tried is in favor of any party on whom 17 liability is sought to be imposed, judgment in favor of such party shall thereupon be entered and no trial of other issues in the action 18 as against such party shall be had.... 19 This bifiircatioti provision was amended in 1977 to "expand the flexibility of courts to 20 handle particular cases as expeditiously as possible." Plaza Tulare v. Tradewell Stores, Inc. 21 (1989) 207 Cal.App.3d 522, 524. Its main objective, "allowiilg determination of the issue of 22 liability before other issues, is avoidance ofthe waste oftimeand money caused by the 23 unnecessary trial of damage questions in cases where the liability issue may be resolved against 24 the Plaintiff." Id. The decision to bifurcate is committed to the sound discretion of the trial 25 court. Finley v. Superior Court of Orange Coimty (2000) 80 Cal. App.4th 1152. The Court also 26 has the authority to order that special defenses be determined first. Id. at 1162. Most 27 import.antiy,"[i]t has long been held that special defenses which abaite or bar the claim of the 28 DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDFVIDUAL CLAIMS FROM PLAINTIFF'S RJEPRESENTATIVE CLAIMS AT TRIAL 1 plaintiff may be tried before other issues, for a decision in the defendant's favor may render 2 unnecessary the effort and expense of a complete trial." Cohn v. Bugas (1974) 42 Cal.App.3d 3 381,389. 4 Code of Civil Procedure section 1048(b) also provides authority to sever and tty first any 5 issue. It provides, in relevant part, as follows: 6 The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, 7 may order a separate trial of any cause of action, including a cause ofaction asserted in a cross-complaint, or of any separate issue or 8 of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this State or 9 the Uiiited States. 10 Code ofCivil Procediire section 1048(b) (emphasis added). 11 Under this provision, trial courts have "broad discretion" to bifiu-cate trials and 12 "determine the order of proof in the interests of judicial economy." Grappo v. Coventry 13 Financial Corp. (1991) 235 Cal.App.3d 496, 504; see also McLellan v. McLellan (1972) 23 14 Cal.App.3d 343, 353 (providing that "it is within the sound discretion of the court to define 15 issues and direct the order of proof'). "The procedure is hot lurdted to separate trials of liaibility 16 and damages; nor is it limited to dividing a case info only two parts. Indeed, 'trifurcation or 17 multifiircation' can be ordered." Weil & Brown, Cal. Practice Guide: Civil Procedure Before 18 Trial (The Rutter Group 2001) T| 12:406. "The major objective of bifurcated trials is to expedite 19 and simplify the presentation of evideiice." Foreman & Clark Corporation v. Fallon 20 (1971) 3 Cal.3d 875, 888. 21 Here, for the reasons stated more fully below, bifurcation of Plaintiff s individuals 22 claims, mcluding determining whether or not Plaintiff was an "aggrieved employee," firom 23 Plaintiffs representative claims brought on behalf of over 150 other employees througliout 24 Califomia is proper because: (1) Plaintiffs individual claims are a threshold to her representative 25 PAGA claims; (2) resolution of Plaintiff s individual claims in Defendant's favor would render 26 consideration of her representative PAGA claims uimecessary; (3) bifiircation has the potential to 27 substantially reduce the length of trial and thereby promote judicial efficiency and economy; (4) 28 4 DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT TRIAL 1 denial of bifiircation vnll prejudice Defendant; and (5) bifiircation does not result in prejudice to 2 Plaintiff. 3 B. Plaintiffs Standing as an Aggrieved Employee Is a Threshold Issue 4 Here, Plaintiffs operative Complaint alleges claims pursuant to PAGA. The Califomia 5 legislature adopted PAGA "to prescribe a civil penalty for existing Labor Code sections for 6 which no civil penalty has otherwise been established, and to allow aggrieved employees . . . to 7 bring a civil action to collect civil penalties for Labor Code violations previously only available 8 in eriforcemerit actions initiated by the state's labor law enforcement agencies." Caliber 9 Bodyworks Inc. v. Super. Ct., (2005) 134 Cal. App. 4th 365, 374. 10 In order to proceed with her PAGA claims. Plaintiff must first show ishc is an aggrieved 11 employee. See Labor Code section 2699(c) ("aggrieved employee" means any person who was 12 employed by the alleged violator arid agamst whom one or more ofthe alleged violations was 13 committed."); see also Hibbs-Rines v. Seagate Technologies, LLC, (N.D. Cal. Mar. 2, 2009) 14 2009 U.S. Dist. LEXIS 19283, *12 (an employee must have suffered Labor Code violations in 15 order to be considered "aggrieved"); Amalgamated Transit Union, Local 1756, AFLCIO v. 16 Superior Court (First Transit, Inc. (2009) 46 Cal. 4'*' 993,1005 ("a plaintiff has standing to bring 17 aft action under the Labor Code Private Attomeys General Act of 2004 only if the plaintiff is an 18 'aggrieved employee'."). 19 As such, in order to be entitled to collect civil penalties with respect to any of her PAGA 20 claims (either on her ovm behalf, or on behalf of the PAGA group). Plaintiff here must prove that 21 she is an aggrieved employeefirst—^tlieDefendant actually discriminated against her and paid 22 her less than comparable male associates on the basis of gender. If Plaintiff cannot demonstrate 23 this, none of her evidence with respect to Labor Code violations allegedly suffered by other 24 employees matters. See Hibbs-Rines, 2009 U.S. Dist. LEXIS 19283, at "^12 (if a plaintiff cannot 25 prove that the defendant violated the Califomia Labor Code with respect to each eriiployee 26 included ui the complaint as an "aggrieved employee," no penalties should be assessed under 27 PAGA). 28 DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT TRIAL 1 2 As a result. Plaintiffs individual claims are a threshold issue in this matter, and should be 3 resolved first. 4 C. Bifurcation Here Promoteis Judicial Economy 5 As noted above, Code of Civil Procedure sections 598 and 1048 allow this Court to order 6 bifiircation in furtherance of expedition and economy. Here, "expedition and economy" is best 7 served by bifurcating the Plaintiffs individual claims from Plaintiffs representative clairhs 8 considering that the individual aspect of this case will be tried relatively quickly when compared 9 to the representative claims, which could take several weeks to present to the jury, and which 10 will be unnecessary if Plaintiff does not prevail on her individual claims. (Decl. of Carlon, T|l 1 - 11 12.) 12 The economic benefitsfirombifurcation are evident when considering the evidence that 13 will be presented for Plaintiffs mdividual claim and her representative claims. The evidence of 14 liability with respect to Plaintiff individually is separate arid distinct from the evidence 15 conceming other employees in the PAGA group that Pladntiff seeks to represent. As raised in 16 Defendant's Motion for Suminary Judgment, and conceded by Plaintiff in her Opposition, in 17 considering Plaintiffs individual Califomia EPA claim the scope of inquiry and comparison is 18 limited to those who worked at the same establishment as Plaintiff - LBBS Sacramento. See 19 Plaintiffs Opposition to Defendant's Motion for Summary Adjudication at 2:5-9.' 20 The liability evidence with respect to Plaintiffs individual violations will largely consist 21 of an analysis of (1) Plaintiffs prior experience before joining LBBS Sacramerito; (2) Plaintiffs 22 responsibilities and work performance while employed at LBBS Sacramento; (3) the prior 23 experience of male associates at LBBS Sacramento that Plaintiff alleges were comparable to 24 herself; (4) the work responsibilities and work performance of other employees at LBBS 25 26 ' This portion of the Opposition stated that Defendant dedicated "over two full pages of its motion to the assertion - which is not even disputed by Plaintiff - that the inquiry . . . should be 27 limited to operations of Defendant's Sacramento office." 28 DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT TRIAL 1 Sacramento that Plaintiff alleges were comparable to herself; (5) LBBS Sacramento's salary 2 decisions relating to Plaintiff; and (6) LBBS Sacramento's salary decisions relating to other 3 employees Plaintiff alleges were comparable. (Decl. of Carlon, ^9.) Defendant anticipates 4 callirig a handfiil of witnesses, including a representative of Defendanf s compensation 5 committee and the managing partner of LBBS SacranientO. (Decl. of Carlon, ^ 7.) 6 Meanwhile, Plaintiffs representative claims argue that LBBS pays its female associates 7 less than comparable males across all of Califomia. Unlike a class action, PAGA claims do not 8 involve consideration of a common issue in order to detennine liability on a class wide basis. 9 Instead, a PAGA claim necessitates the consideration of each separate potential aggricjved 10 employee individually. There have been over 150 female associates employed by LBBS across 11 Califomia in the relevant time period for Plaintiffs PAGA claim. (Decl. of Carlon, ^ 14.) As a 12 result, we ariticipate that Plaintiff will seek to introduce evidence regarding: (1) the prior work 13 history of all female associates responsibilities and allegedly comparable male associates; (2) 14 information regarding the salaries and salary decisions for female associates in California as well 15 as coniparable male associates in Califomia; (3) the work responsibititles,duties, and 16 performance of associates in Califomia. (Decl. of Carlon, ^ 10.) In opposition. Defendant will 17 need to introduce evidence regarding the salary practices at numerous offices outside of 18 Sacramento. Defendant also anticipates the need to call numerous additional witnesses in 19 defense of this claim, including managing partners ofall of LBBS' Califomia offices, additional 20 menibers of the compensation committee, and potentidly some associate attorneys. (Decl. of 21 Carlon, ll 8.) 22 Information relating to these categories for employees outside of LBBS Sacramento is 23 completely irrelevant to Plaintiffs claims. Conversely, Plaintiffs own records are irrelevant to 24 violations allegedly suffered by PAGA group members, as those individuals' records and 25 testimony must be used to prove whether each employee suffered a Labor Code violation. 26 Hibbs-Rines, 2009 U.S. Dist. LEXIS 19283, *11 (N.D. Cal. Mar. 2,2009) (plaintiffs are required 27 to "prove Labor Code violations with respect to each and every individual on whose behalf 28 DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION ANID MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT TRIAL I plaintiff seeks to recover civil penalties"). The Court can, and should, take advantage of this 2 natural division ofthe evidence and try the individual and representative issues separately. 3 During meet and confer efforts prior to the filing of this Motion, Plaintiffs counsel 4 indicated that, because Plaintiff is alleging "intentional" violations of the Califomia EPA, 5 Plaintiff will seek to introduce some evidence regarding other employees in other offices in 6 support of her individual claims. Even if this is permitted, the evidence would not be nearly as 7 extensive as requured for the PAGA claims, which would require essentially individual trials 8 regardmg each associate Plaintiff intends to represent. 9 D. Defendant Will be Prejudiced If Bifurcation Is Denied arid No Prejudice Results from Bifurcation 10 11 Should bifurcation be denied. Defendant m\l be forced to endure an extremely costly and 12 invasive multi-week trial that might ultimately be determined to have been completely 13 uimecessary. (Decl. of Carlon, UK 11,12.) The Court and Plaintiffs counsel will similarly be 14 prejudiced, as numerous weeks of time would potentially be wasted considering whether or not 15 any aggrieved employees exist other than Plauitiff. Contrarily, there would be absolutely no 16 prejudice to any party and only upside from separate trials. If Defendant prevails on the 17 individual phase, then all parties, the Court and jurors are spared from having to spend the time 18 arid effort required for trial ofthe representative claims. 19 If Plaintiff prevails on fhe individual phase, then she can siriiply proceed with putting on 20 the rest of heir case. Even if, as Plaintiff has asserted, she will seek to introduce evidence of 21 discrimination at other locations in support of her "intent" argument, there is no reason why this 22 limited evidence camiot be presented as part ofa limited individual frial, and then expounded 23 upon as appropriate should this matter proceed to representative claims. As a result, there is 24 absolutely no benefit to any party or the Courtfi-omdenying bifurcation, and should bifurcation 25 be denied, great prejudice will result. 26 /// 27 /// 28 DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAIMS AT TRIAL 1 IV. CONCLUSION 2 For each of the reasons set forth herein. Defendant respectfully requests that its Motion 3 be granted m its entirety, and that Plaintiffs individual claims be tried before her representative 4 clairhs. 5 6 DATED: October 8, 2014 Respectfiilly submitted, 7 LEWIS BRISBOIS BISGAARD & SMITH LLP 8 9 By: 10 fey S. Ranen ; S. Sachs 11 Joshua Carlon 12 Attorneys for Defendant Lewis Brisbois Bisgaard & Smith LLP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT LEWIS BRISBOIS BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE CLAlMSlAT TRIAL 1 CALIFORNIA STATE COURT PROOF OF SERVICE 2 Yamin Scardigli v. Lewis Brisbois Bisgaard & Smith LLP - File No. 8055.909 3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 4 At fhe time of service, I was over 18 years of age and not a party to the action. My business address is 221 North Figueroa Street, Suite 1200, Los Angeles, CA 90012. 5 Ori October 8, 2014,1 served the followmg document(s): LEWIS BRISBOIS 6 BISGAARD & SMITH LLP'S NOTICE OF MOTION AND MOTION TO BIFURCATE PLAINTIFF'S INDIVIDUAL CLAIMS FROM PLAINTIFF'S REPRESENTATIVE 7 CLAIMS AT TRIAL 8 I served the docuriients on the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): 9 William J. Gorharii, III, Esq; Attorneys for Plaintiff, Yamin T. Scardigli 10 Nicholas J. Scardigli, Esq. Mayall Hurley P.C, 11 2453 Grand Canal Boulevard Stockton, CA 95207 12 Telephone No.: (209) 477-3833 FacsunileNo.: (209) 473-4818 13 The documents were served by the following rnearis: 14 Hi (BY MESSENGER SERVICE) I served the docmnents by placing them in an envelope or 15 package addressed to the persons at the addresses listed above and providing them tb a professional messenger service. (A proof of service executed by the messenger will be 16 fi led in compliance with the Code of Civil Procedure.) 17 I declare under penalty of perjury under the laws of the State of California tliat the foregoing is tme and correct. 18 Executed on October 8, 2014, at Los Angeles, Califomia. 19 20 21 Qexandra Martine: 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD &SMIHL1P AnCtfJNFiS AI LAW