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1 KYLE L. SCHRINER (State Bar No. 215853)
SCHRINER LAW FIRM, PC
2 1936 University Ave., Suite 110 ELECTRONICALLY
3 Berkeley, CA 94704 FILED
Superior Court of California,
Telephone: (415) 321-4924 County of San Francisco
4 Email: kyle@schrinerlaw.com 04/21/2023
Clerk of the Court
5 Attorneys for Defendants BY: ERNALYN BURA
THE WHOLE CART, LLC and Deputy Clerk
6 OFF THE GRID SERVICES, LLC
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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10 FOR THE COUNTY OF SAN FRANCISCO
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BRIANA HINOJOSA, an individual, on Case No. CGC-22-603603
12 behalf of themself, and others persons
similarly-situated, MEMORANDUM IN SUPPORT OF
13 DEFENDANTS’ MOTION TO STAY THIS
14 Plaintiff, ACTION
15 vs. HEARING
Date: June 2, 2023
16 THE WHOLE CART, LLC, a California Time: 9:00 a.m.
limited liability company; OFF THE GRID Dept.: 304
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SERVICES, LLC, a Delaware limited liability
18 corporation; and DOES 1-20, inclusive, Complaint filed: December 20, 2022
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Defendants.
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
1 This class action lawsuit is duplicative of a pre-existing class action lawsuit that is
2 currently pending in Alameda County. The Whole Cart, LLC and Off The Grid Services,
3 LLC (“Defendants”) respectfully move the Court for an order staying this lawsuit until the
4 earlier-filed lawsuit is resolved.
5 A. Introduction.
6 Three months before this lawsuit was filed, a class action was filed against
7 Defendants titled Evans v. Off The Grid Services, LLC and The Whole Cart, LLC, Alameda
8 County Superior Court Case No. 22CV018144 (the “Alameda Lawsuit”). The Alameda
9 Lawsuit and this lawsuit involve substantially the same parties and alleged class members,
10 issues of fact, and issues of law. In other words, the two suits are basically the same.
11 The doctrine of exclusive concurrent jurisdiction functions to avoid conflicting
12 decisions between courts, to promote judicial efficiency, and to avoid the burden and
13 expense of multiple suits. Pursuant to that doctrine, this dispute should be resolved in the
14 first-filed lawsuit, in Alameda County, and this Court should stay this second-filed suit until
15 a final disposition of the Alameda County suit.
16 B. Governing Law.
17 Under the doctrine of exclusive concurrent jurisdiction, “when two or more courts
18 have subject matter jurisdiction over a dispute, the court that first asserts jurisdiction
19 assumes it to the exclusion of the others.” Shaw v. Superior Court of Contra Costa County
20 (2022) 78 Cal.App.5th 245, 255; Franklin & Franklin v. 7-Eleven Owners for Fair
21 Franchising (2000) 85 Cal.App.4th 1168, 1175 (“The established rule of ‘exclusive
22 concurrent jurisdiction’ provides that where two (or more) courts possess concurrent
23 subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to
24 the exclusion of all others, thus rendering ‘concurrent’ jurisdiction ‘exclusive’ with the first
25 court”); Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 460 (“when
26 two superior courts have concurrent jurisdiction over the subject matter and the parties, the
27 first court to assume jurisdiction has exclusive and continuing jurisdiction until such time as
28 all necessarily related matters have been resolved. A writ of prohibition is an appropriate
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
1 remedy when the second court refuses to recognize this exclusive jurisdiction”) (citation
2 omitted). “The rule is a judicial rule of priority or preference and is not jurisdictional in the
3 traditional sense of the word, in that it does not divest a court, which otherwise has
4 jurisdiction of an action, of jurisdiction.” Shaw, 78 Cal.App.5th at 256 (quotation marks
5 omitted).
6 The rule is “a highly practical one,” avoiding conflicting decisions between courts in
7 cases involving issues that are “substantially the same,” as well as avoiding the burden and
8 expense of multiple litigation. Franklin, 85 Cal.App.4th at 1175-76. It “is based upon the
9 public policies of avoiding conflicts that might arise between courts if they were free to
10 make contradictory decisions or awards relating to the same controversy and preventing
11 vexatious litigation and multiplicity of suits.” Shaw, 78 Cal.App.5th at 255.
12 Although the rule is similar in effect to a statutory plea in abatement, the rule is more
13 expansive; the rule applies even where the narrow grounds for statutory abatement do not.
14 Shaw, 78 Cal.App.5th at 256:
15 Unlike the statutory plea [in] abatement, the rule of exclusive
concurrent jurisdiction does not require absolute identity of parties,
16 causes of action or remedies sought in the initial and subsequent
17 actions. [Citations.] If the court exercising original jurisdiction has the
power to bring before it all the necessary parties, the fact that the
18 parties in the second action are not identical does not preclude
application of the rule. Moreover, the remedies sought in the separate
19 actions need not be precisely the same so long as the court exercising
20 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
21 pleadings.
22 Id.; County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 91 (for the rule to
23 apply, “although the parties in the two actions and the remedies sought need not be
24 precisely the same, the issues in the two proceedings must be substantially the same and
25 the individual suits must have the potential to result in conflicting judgments”); Franklin, 85
26 Cal.App.4th at 1175 (“It is sufficient for the exercise of a protective equitable jurisdiction
27 that [an] issue in both suits is the same and arises out of the same transaction or events”).
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
1 Where the rule applies, “the remedy … is a stay of the second action.” People ex rel.
2 Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 769. Such a stay can
3 and should be ordered pursuant to the Court’s inherent power to do so. See Freiberg v.
4 City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489 (“Trial courts generally have the
5 inherent power to stay proceedings in the interests of justice and to promote judicial
6 efficiency”); St. Paul Fire and Marine Ins. Co. v. AmerisourceBergen Corp. (2022) 80
7 Cal.App.5th 1, 6-7, 13-14 (“the power to stay proceedings is incidental to the power
8 inherent in every court to control the disposition of the causes on its docket with economy
9 of time and effort for itself, for counsel, and for litigants”).
10 An order to abate or stay a second action “issues as a matter of right [i.e.,
11 mandatory] not as a matter of discretion [i.e., discretionary] where the conditions for its
12 issuance exist” under the rule. Garamendi, 20 Cal.App.4th at 770-71 (bracketed terms are
13 so set forth in the original opinion); Plant Insulation Co. v. Fibreboard Corp. (1990) 224
14 Cal.App.3d 781, 787 (“An order of abatement issues as a matter of right not as a matter of
15 discretion where the conditions for its issuance exist”); Lawyers Title, 151 Cal.App.3d at
16 460 (same). “The rule of exclusive concurrent jurisdiction, as mentioned previously, is
17 mandatory. Thus, if the conditions are met, the issuance of a stay order is a matter of right.”
18 Garamendi, 20 Cal.App.4th at 772. These conditions are set forth in Shaw, 78 Cal.App.5th
19 at 256, supra: that “two (or more) courts possess concurrent subject matter jurisdiction over
20 a cause,” that the court in the first action “has the power to bring before it all the necessary
21 parties,” and that the court in the first action “has the power to litigate all the issues and
22 grant all the relief to which any of the parties might be entitled under the pleadings.” Thus
23 these are the conditions that the courts consider. See, e.g., id. at 257 (“In their writ petition,
24 petitioners do not argue that the conditions for applying the exclusive concurrent jurisdiction
25 rule are absent here. They do not contend, for example, that this case and Paez do not
26 arise from the same facts and theories, that the two litigations pose no risk of inconsistent
27 rulings, or that the parties and remedies involved are such that the exclusive concurrent
28 jurisdiction rule cannot be applied”); Lawyers Title, 151 Cal.App.3d at 459-60 (observing
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
1 that “abatement is not appropriate where the first action cannot afford the relief sought in
2 the second,” finding it appropriate where “there is no obstacle to preclude real parties from
3 filing a [claim] in the [first-filed] action and from securing a determination of all issues”
4 therein, and describing and following another such case in which “there was no issue which
5 could not be raised in the first suit or no necessary party who could not be joined”).
6 Despite its “mandatory” nature, the rule of exclusive concurrent jurisdiction “is a rule
7 of policy” and, as such, “countervailing policies may make the rule inapplicable.”
8 Garamendi, 20 Cal.App.4th at 772. In Shaw, the Court of Appeal commented that “[t]here is
9 some tension” between the courts’ holdings that the rule is “mandatory” and their
10 simultaneous indications that “countervailing policies” may make it otherwise. See Shaw,
11 78 Cal.App.5th at 256. This tension continues to exist since the Shaw opinion, which was
12 just filed in May 2022. However, pursuant to the case law, the rule of exclusive concurrent
13 jurisdiction must be either (1) mandatory, period, or (2) mandatory, unless countervailing
14 policies outweigh the policies that give rise to the rule. As Defendants explain infra, that
15 distinction makes no practical difference in this case because no such countervailing
16 policies apply here and the Court should stay this lawsuit in any event.
17 C. Relevant Facts.
18 The Alameda Lawsuit was filed in Alameda County on September 19, 2022, and it
19 remains an active, pending matter today. (Exh. 1; 1 RJN ¶ 1; Declaration of Kyle L. Schriner
20 (“Decl.”) ¶ 2.) Defendants filed their answer to the complaint in the Alameda Lawsuit on
21 December 1, 2022. (Exh. 2; RJN ¶ 2; Decl. ¶ 3.) Pursuant to a stipulation in the Alameda
22 Lawsuit, Defendants have requested leave to file a first amended answer therein. (Exh. 3;
23 RJN ¶ 3; Decl. ¶ 4.)
24 This lawsuit was filed in San Francisco on December 20, 2022, three months after
25 the Alameda Lawsuit. (Exh. 4; RJN ¶ 4; Decl. ¶ 5.) Defendants filed their answer to the
26 complaint herein on March 23, 2023. (Exh. 5; RJN ¶ 5; Decl. ¶ 6.)
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28 1 All exhibit references herein are to those attached to the Index of Exhibits.
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
1 The Alameda Lawsuit and this lawsuit are related cases. (Exhs. 6, 7; RJN ¶¶ 6, 7;
2 Decl. ¶¶ 7, 8.) Defendants have filed a Notice of Related Case in the Alameda Lawsuit and
3 in this lawsuit, giving notice that the two suits involve the same parties and are based on
4 the same or similar claims, arise from the same or substantially identical transactions,
5 incidents, or events requiring the determination of the same or substantially identical
6 questions of law or fact, and are otherwise likely to require substantial duplication of judicial
7 resources if heard by different judges. (Id.) No party served or filed any response to that
8 notice in either of the lawsuits, opposed the notice pursuant to Rule 3.300(g) of the
9 California Rules of Court, or contends that the suits are not so related. (Decl. ¶¶ 7, 8.)
10 Both of the suits are class action lawsuits against the same two Defendants. (Exhs.
11 1, 4.) All of the parties in both suits – including the alleged class representatives and all
12 members of the alleged class – are equally within the Superior Courts’ jurisdiction in
13 California. (See Exh. 1 ¶¶ 3-5, 11; Exh. 4 ¶¶ 6-8, 22.)
14 The composition of the class in the two lawsuits is essentially the same. (Exhs. 1, 4;
15 Decl. ¶ 9.) In the Alameda Lawsuit, the class definition is alleged as “All persons
16 Defendants employed in California as hourly and non-exempt, individuals performing work
17 comparable to the aforementioned [i.e. to the named plaintiff/class representative],
18 compensated comparably to the aforementioned, and individuals in similar positions, at any
19 time during the period beginning four years prior to the filing of this action and ending on
20 the date that final judgment is entered in this action.” (Exh. 1 ¶ 11.) The complaint in the
21 Alameda Lawsuit explains that the named class representative, “and all of the Class
22 Members, worked for one or more lunch counters” and were required “to travel, prepare
23 and serve food.” (Exh. 1 ¶¶ 19, 22.) The complaint in the Alameda Lawsuit alleges that the
24 named class representative was employed as a “truck supervisor,” i.e. a supervisor of a
25 food truck. (Exh. 1 ¶ 20; Decl. ¶ 9.) Likewise, in this lawsuit, the class definition is alleged
26 as “All non-exempt employees employed by Defendants performing food preparation,
27 cooking services, and/or driving Defendants’ food trucks, except any employee who held
28 the position of ‘InsTrucktional Entrepreneur’ within the State of California during the period
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
1 four (4) years prior to the filing of the initial complaint in this action through the date of this
2 action’s final disposition, plus any tolling for other class and representative actions.” (Exh. 4
3 ¶ 22.) The complaint herein also alleges that the named class representative, after working
4 “as a line cook for Defendants’ food truck operations,” was employed – just like the named
5 class representative in the Alameda Lawsuit – as a “Truck Supervisor in charge of driving a
6 food truck and managing the food preparation and food service.” (Exh. 4 ¶ 6.)
7 The existing class definition allegations in both of these cases are somewhat vague,
8 but on their face they overlap completely (or, in light of the partial vagueness of the
9 allegations, they at least overlap very substantially). Both of these cases concern the same
10 food truck employees; the only potential difference is that in the Alameda Lawsuit, which
11 was filed earlier, claims may reach further back in time and cover additional damages or
12 employees that are not within this lawsuit because of the statute of limitations. Both of the
13 vaguely-alleged class definitions could be construed as additionally including employees
14 who worked in a food-preparation kitchen rather than on the food trucks themselves, but if
15 so construed, the alleged classes would remain the same in both cases.
16 In fact such “additional” employees must be excluded from the class in both of these
17 cases in any event. The employees who did the prep kitchen work and not the work on the
18 food trucks brought, settled and released all claims relating to another class action lawsuit 2
19 against Defendants for the same alleged wage and hour violations. (Exhs. 8-10; RJN ¶¶ 8-
20 10; Decl. ¶¶ 9-12.) Apart from including employees who worked on the food trucks, the
21 alleged class definition in this case is virtually identical in its terms, and is identical in
22 substance, to the settlement class in that other lawsuit. (Exh. 4 ¶ 22; Exh. 9 at 2:4-7.)
23 A further category of employees who likewise cannot participate in this suit or the
24 Alameda Lawsuit consists of the “InsTrucktional Entrepreneurs” who are expressly carved
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26 2Reyes v. The Whole Cart, LLC and Off The Grid Services, LLC, San Francisco
27 County Superior Court Case No. CGC-20-584861, which is assigned to this Department of
this Court. The Court entered judgment therein on September 16, 2022. A status
28 conference regarding final settlement distributions is set for May 5, 2023.
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
1 out of the alleged class definition in this case; the employees who held that position worked
2 on the food trucks and they brought, and settled and released all claims relating to, still
3 another class action lawsuit 3 against Defendants for the same alleged wage and hour
4 violations. (Exhs. 11, 12; RJN ¶¶ 11, 12; Decl. ¶¶ 9, 13, 14.)
5 The complaint in the Alameda Lawsuit alleges five causes of action, the first four of
6 which are alleged under the Labor Code: (1) failure to provide meal periods to the class
7 members, (2) failure to authorize and permit rest breaks for the class members, (3) failure
8 to indemnify the class members for business expenses, (4) waiting time penalties for failure
9 to timely pay final wages, and (5) unfair competition under Business & Professions Code §§
10 17200, et seq. (Exh. 1, passim.) The complaint herein alleges the same five causes of
11 action (as the Fourth, Fifth, Sixth, Eighth, and Ninth Causes of Action herein). (Exh. 4,
12 passim.) The complaint herein additionally sets forth three claims of failure to pay wages
13 (for all hours worked, minimum wages, and overtime wages), and a claim of failure to
14 provide accurate itemized wage statements. (Id.)
15 The affirmative defenses that Defendants allege in the Alameda Lawsuit and in this
16 lawsuit are nearly identical, too. (Exhs. 2, 3, 5; RJN ¶¶ 2, 3, 5; Decl. ¶¶ 3, 4, 6.) A pertinent
17 difference is that herein Defendants allege the affirmative defense of the doctrine of
18 exclusive concurrent jurisdiction and that this case should be stayed pursuant thereto. (Id.)
19 D. Analysis.
20 The issues in the Alameda Lawsuit and this lawsuit are substantially the same. The
21 facts and evidence summarized above demonstrate that the same causes of action are
22 asserted against the same Defendants, on behalf of two classes of the same employees,
23 with regard to the same time frame. There may be some minor differences in how these
24 two lawsuits are currently pleaded, and other minor differences at their fringes; however, as
25 the case law supra establishes, such differences do not impact the applicability of the rule
26 of exclusive concurrent jurisdiction.
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O’Neal-Roberts v. Off The Grid Services, LLC and The Whole Cart, LLC, Alameda
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County Superior Court Case No. RG20075270.
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
1 The Alameda County Superior Court and this Court have concurrent jurisdiction over
2 the subject matter of these two suits. The Alameda County Superior Court and this Court
3 equally have jurisdiction over the parties, the power to bring all necessary parties before
4 them and the power to litigate all the issues and grant all the relief to which anyone might
5 be entitled in these suits. See, e.g., Long v. Forty Niners Football Co., LLC (2019) 33
6 Cal.App.5th 550, 556 (“superior courts are courts of general subject matter jurisdiction and
7 can adjudicate any and all cases before them” subject to inapplicable exceptions); Cal. Civ.
8 Proc. Code § 71 (“The process of superior courts shall extend throughout the state”).
9 Because they involve the same subjects, and in light of the many facts above, these
10 two suits have the potential to result in conflicting judgments. Pursuant to the rule of
11 exclusive concurrent jurisdiction, the subjects of these suits should be litigated and
12 resolved in one Superior Court case, not two. This is necessary to achieve the purposes
13 upon which the rule is based: to avoid conflicting decisions between courts, to avoid the
14 burden and expense of unnecessary multiple lawsuits, and to increase judicial efficiency.
15 Pursuant to the rule, this litigation must proceed before the Superior Court in the
16 first-filed case and should be stayed in the second-filed case. The Alameda Lawsuit is the
17 first case; this lawsuit is the second case. Therefore, this Court should stay this case.
18 As case law explains, a stay of this case is “mandatory.” The law is uncertain as to
19 whether a stay is mandatory period, or mandatory unless countervailing policies outweigh
20 the policies giving rise to exclusive concurrent jurisdiction. That distinction makes no
21 difference here, because either way the result is the same: the Court should stay this
22 lawsuit. If a stay is mandatory period, then the analysis ends there, and this second-filed
23 action must be stayed until a final resolution of the Alameda Lawsuit. If a stay is mandatory
24 unless, then the final question is whether there are relevant, countervailing policies that
25 outweigh the policies giving rise to exclusive concurrent jurisdiction – and the answer to this
26 question is “no.” No such policy exists, and no such policy outweighs the reasons for the
27 rule. Thus in this event as well, this second-filed action must be stayed until a final
28 resolution of the Alameda Lawsuit.
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
1 E. Conclusion.
2 The facts and circumstances of the Alameda Lawsuit and this lawsuit make the
3 doctrine of exclusive concurrent jurisdiction applicable here. That concurrent jurisdiction
4 attached first in Alameda County, because that lawsuit was filed before this one. The
5 Alameda County Superior Court is the “exclusive” court, the proper court, for determination
6 of all of the issues. This Court, therefore, should stay this later-filed lawsuit until the matter
7 is resolved in the Alameda Lawsuit.
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9 Dated: April 21, 2023 SCHRINER LAW FIRM, PC
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11 /s/ Kyle L. Schriner
Attorneys for Defendants
12 THE WHOLE CART, LLC and
OFF THE GRID SERVICES, LLC
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MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603
Preview
1 KYLE L. SCHRINER (State Bar No. 215853) SCHRINER LAW FIRM, PC 2 1936 University Ave., Suite 110 ELECTRONICALLY 3 Berkeley, CA 94704 FILED Superior Court of California, Telephone: (415) 321-4924 County of San Francisco 4 Email: kyle@schrinerlaw.com 04/21/2023 Clerk of the Court 5 Attorneys for Defendants BY: ERNALYN BURA THE WHOLE CART, LLC and Deputy Clerk 6 OFF THE GRID SERVICES, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 10 FOR THE COUNTY OF SAN FRANCISCO 11 BRIANA HINOJOSA, an individual, on Case No. CGC-22-603603 12 behalf of themself, and others persons similarly-situated, MEMORANDUM IN SUPPORT OF 13 DEFENDANTS’ MOTION TO STAY THIS 14 Plaintiff, ACTION 15 vs. HEARING Date: June 2, 2023 16 THE WHOLE CART, LLC, a California Time: 9:00 a.m. limited liability company; OFF THE GRID Dept.: 304 17 SERVICES, LLC, a Delaware limited liability 18 corporation; and DOES 1-20, inclusive, Complaint filed: December 20, 2022 19 Defendants. 20 21 22 23 24 25 26 27 28 1 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603 1 This class action lawsuit is duplicative of a pre-existing class action lawsuit that is 2 currently pending in Alameda County. The Whole Cart, LLC and Off The Grid Services, 3 LLC (“Defendants”) respectfully move the Court for an order staying this lawsuit until the 4 earlier-filed lawsuit is resolved. 5 A. Introduction. 6 Three months before this lawsuit was filed, a class action was filed against 7 Defendants titled Evans v. Off The Grid Services, LLC and The Whole Cart, LLC, Alameda 8 County Superior Court Case No. 22CV018144 (the “Alameda Lawsuit”). The Alameda 9 Lawsuit and this lawsuit involve substantially the same parties and alleged class members, 10 issues of fact, and issues of law. In other words, the two suits are basically the same. 11 The doctrine of exclusive concurrent jurisdiction functions to avoid conflicting 12 decisions between courts, to promote judicial efficiency, and to avoid the burden and 13 expense of multiple suits. Pursuant to that doctrine, this dispute should be resolved in the 14 first-filed lawsuit, in Alameda County, and this Court should stay this second-filed suit until 15 a final disposition of the Alameda County suit. 16 B. Governing Law. 17 Under the doctrine of exclusive concurrent jurisdiction, “when two or more courts 18 have subject matter jurisdiction over a dispute, the court that first asserts jurisdiction 19 assumes it to the exclusion of the others.” Shaw v. Superior Court of Contra Costa County 20 (2022) 78 Cal.App.5th 245, 255; Franklin & Franklin v. 7-Eleven Owners for Fair 21 Franchising (2000) 85 Cal.App.4th 1168, 1175 (“The established rule of ‘exclusive 22 concurrent jurisdiction’ provides that where two (or more) courts possess concurrent 23 subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to 24 the exclusion of all others, thus rendering ‘concurrent’ jurisdiction ‘exclusive’ with the first 25 court”); Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 460 (“when 26 two superior courts have concurrent jurisdiction over the subject matter and the parties, the 27 first court to assume jurisdiction has exclusive and continuing jurisdiction until such time as 28 all necessarily related matters have been resolved. A writ of prohibition is an appropriate 2 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603 1 remedy when the second court refuses to recognize this exclusive jurisdiction”) (citation 2 omitted). “The rule is a judicial rule of priority or preference and is not jurisdictional in the 3 traditional sense of the word, in that it does not divest a court, which otherwise has 4 jurisdiction of an action, of jurisdiction.” Shaw, 78 Cal.App.5th at 256 (quotation marks 5 omitted). 6 The rule is “a highly practical one,” avoiding conflicting decisions between courts in 7 cases involving issues that are “substantially the same,” as well as avoiding the burden and 8 expense of multiple litigation. Franklin, 85 Cal.App.4th at 1175-76. It “is based upon the 9 public policies of avoiding conflicts that might arise between courts if they were free to 10 make contradictory decisions or awards relating to the same controversy and preventing 11 vexatious litigation and multiplicity of suits.” Shaw, 78 Cal.App.5th at 255. 12 Although the rule is similar in effect to a statutory plea in abatement, the rule is more 13 expansive; the rule applies even where the narrow grounds for statutory abatement do not. 14 Shaw, 78 Cal.App.5th at 256: 15 Unlike the statutory plea [in] abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, 16 causes of action or remedies sought in the initial and subsequent 17 actions. [Citations.] If the court exercising original jurisdiction has the power to bring before it all the necessary parties, the fact that the 18 parties in the second action are not identical does not preclude application of the rule. Moreover, the remedies sought in the separate 19 actions need not be precisely the same so long as the court exercising 20 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 21 pleadings. 22 Id.; County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 91 (for the rule to 23 apply, “although the parties in the two actions and the remedies sought need not be 24 precisely the same, the issues in the two proceedings must be substantially the same and 25 the individual suits must have the potential to result in conflicting judgments”); Franklin, 85 26 Cal.App.4th at 1175 (“It is sufficient for the exercise of a protective equitable jurisdiction 27 that [an] issue in both suits is the same and arises out of the same transaction or events”). 28 3 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603 1 Where the rule applies, “the remedy … is a stay of the second action.” People ex rel. 2 Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 769. Such a stay can 3 and should be ordered pursuant to the Court’s inherent power to do so. See Freiberg v. 4 City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489 (“Trial courts generally have the 5 inherent power to stay proceedings in the interests of justice and to promote judicial 6 efficiency”); St. Paul Fire and Marine Ins. Co. v. AmerisourceBergen Corp. (2022) 80 7 Cal.App.5th 1, 6-7, 13-14 (“the power to stay proceedings is incidental to the power 8 inherent in every court to control the disposition of the causes on its docket with economy 9 of time and effort for itself, for counsel, and for litigants”). 10 An order to abate or stay a second action “issues as a matter of right [i.e., 11 mandatory] not as a matter of discretion [i.e., discretionary] where the conditions for its 12 issuance exist” under the rule. Garamendi, 20 Cal.App.4th at 770-71 (bracketed terms are 13 so set forth in the original opinion); Plant Insulation Co. v. Fibreboard Corp. (1990) 224 14 Cal.App.3d 781, 787 (“An order of abatement issues as a matter of right not as a matter of 15 discretion where the conditions for its issuance exist”); Lawyers Title, 151 Cal.App.3d at 16 460 (same). “The rule of exclusive concurrent jurisdiction, as mentioned previously, is 17 mandatory. Thus, if the conditions are met, the issuance of a stay order is a matter of right.” 18 Garamendi, 20 Cal.App.4th at 772. These conditions are set forth in Shaw, 78 Cal.App.5th 19 at 256, supra: that “two (or more) courts possess concurrent subject matter jurisdiction over 20 a cause,” that the court in the first action “has the power to bring before it all the necessary 21 parties,” and that the court in the first action “has the power to litigate all the issues and 22 grant all the relief to which any of the parties might be entitled under the pleadings.” Thus 23 these are the conditions that the courts consider. See, e.g., id. at 257 (“In their writ petition, 24 petitioners do not argue that the conditions for applying the exclusive concurrent jurisdiction 25 rule are absent here. They do not contend, for example, that this case and Paez do not 26 arise from the same facts and theories, that the two litigations pose no risk of inconsistent 27 rulings, or that the parties and remedies involved are such that the exclusive concurrent 28 jurisdiction rule cannot be applied”); Lawyers Title, 151 Cal.App.3d at 459-60 (observing 4 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603 1 that “abatement is not appropriate where the first action cannot afford the relief sought in 2 the second,” finding it appropriate where “there is no obstacle to preclude real parties from 3 filing a [claim] in the [first-filed] action and from securing a determination of all issues” 4 therein, and describing and following another such case in which “there was no issue which 5 could not be raised in the first suit or no necessary party who could not be joined”). 6 Despite its “mandatory” nature, the rule of exclusive concurrent jurisdiction “is a rule 7 of policy” and, as such, “countervailing policies may make the rule inapplicable.” 8 Garamendi, 20 Cal.App.4th at 772. In Shaw, the Court of Appeal commented that “[t]here is 9 some tension” between the courts’ holdings that the rule is “mandatory” and their 10 simultaneous indications that “countervailing policies” may make it otherwise. See Shaw, 11 78 Cal.App.5th at 256. This tension continues to exist since the Shaw opinion, which was 12 just filed in May 2022. However, pursuant to the case law, the rule of exclusive concurrent 13 jurisdiction must be either (1) mandatory, period, or (2) mandatory, unless countervailing 14 policies outweigh the policies that give rise to the rule. As Defendants explain infra, that 15 distinction makes no practical difference in this case because no such countervailing 16 policies apply here and the Court should stay this lawsuit in any event. 17 C. Relevant Facts. 18 The Alameda Lawsuit was filed in Alameda County on September 19, 2022, and it 19 remains an active, pending matter today. (Exh. 1; 1 RJN ¶ 1; Declaration of Kyle L. Schriner 20 (“Decl.”) ¶ 2.) Defendants filed their answer to the complaint in the Alameda Lawsuit on 21 December 1, 2022. (Exh. 2; RJN ¶ 2; Decl. ¶ 3.) Pursuant to a stipulation in the Alameda 22 Lawsuit, Defendants have requested leave to file a first amended answer therein. (Exh. 3; 23 RJN ¶ 3; Decl. ¶ 4.) 24 This lawsuit was filed in San Francisco on December 20, 2022, three months after 25 the Alameda Lawsuit. (Exh. 4; RJN ¶ 4; Decl. ¶ 5.) Defendants filed their answer to the 26 complaint herein on March 23, 2023. (Exh. 5; RJN ¶ 5; Decl. ¶ 6.) 27 28 1 All exhibit references herein are to those attached to the Index of Exhibits. 5 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603 1 The Alameda Lawsuit and this lawsuit are related cases. (Exhs. 6, 7; RJN ¶¶ 6, 7; 2 Decl. ¶¶ 7, 8.) Defendants have filed a Notice of Related Case in the Alameda Lawsuit and 3 in this lawsuit, giving notice that the two suits involve the same parties and are based on 4 the same or similar claims, arise from the same or substantially identical transactions, 5 incidents, or events requiring the determination of the same or substantially identical 6 questions of law or fact, and are otherwise likely to require substantial duplication of judicial 7 resources if heard by different judges. (Id.) No party served or filed any response to that 8 notice in either of the lawsuits, opposed the notice pursuant to Rule 3.300(g) of the 9 California Rules of Court, or contends that the suits are not so related. (Decl. ¶¶ 7, 8.) 10 Both of the suits are class action lawsuits against the same two Defendants. (Exhs. 11 1, 4.) All of the parties in both suits – including the alleged class representatives and all 12 members of the alleged class – are equally within the Superior Courts’ jurisdiction in 13 California. (See Exh. 1 ¶¶ 3-5, 11; Exh. 4 ¶¶ 6-8, 22.) 14 The composition of the class in the two lawsuits is essentially the same. (Exhs. 1, 4; 15 Decl. ¶ 9.) In the Alameda Lawsuit, the class definition is alleged as “All persons 16 Defendants employed in California as hourly and non-exempt, individuals performing work 17 comparable to the aforementioned [i.e. to the named plaintiff/class representative], 18 compensated comparably to the aforementioned, and individuals in similar positions, at any 19 time during the period beginning four years prior to the filing of this action and ending on 20 the date that final judgment is entered in this action.” (Exh. 1 ¶ 11.) The complaint in the 21 Alameda Lawsuit explains that the named class representative, “and all of the Class 22 Members, worked for one or more lunch counters” and were required “to travel, prepare 23 and serve food.” (Exh. 1 ¶¶ 19, 22.) The complaint in the Alameda Lawsuit alleges that the 24 named class representative was employed as a “truck supervisor,” i.e. a supervisor of a 25 food truck. (Exh. 1 ¶ 20; Decl. ¶ 9.) Likewise, in this lawsuit, the class definition is alleged 26 as “All non-exempt employees employed by Defendants performing food preparation, 27 cooking services, and/or driving Defendants’ food trucks, except any employee who held 28 the position of ‘InsTrucktional Entrepreneur’ within the State of California during the period 6 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603 1 four (4) years prior to the filing of the initial complaint in this action through the date of this 2 action’s final disposition, plus any tolling for other class and representative actions.” (Exh. 4 3 ¶ 22.) The complaint herein also alleges that the named class representative, after working 4 “as a line cook for Defendants’ food truck operations,” was employed – just like the named 5 class representative in the Alameda Lawsuit – as a “Truck Supervisor in charge of driving a 6 food truck and managing the food preparation and food service.” (Exh. 4 ¶ 6.) 7 The existing class definition allegations in both of these cases are somewhat vague, 8 but on their face they overlap completely (or, in light of the partial vagueness of the 9 allegations, they at least overlap very substantially). Both of these cases concern the same 10 food truck employees; the only potential difference is that in the Alameda Lawsuit, which 11 was filed earlier, claims may reach further back in time and cover additional damages or 12 employees that are not within this lawsuit because of the statute of limitations. Both of the 13 vaguely-alleged class definitions could be construed as additionally including employees 14 who worked in a food-preparation kitchen rather than on the food trucks themselves, but if 15 so construed, the alleged classes would remain the same in both cases. 16 In fact such “additional” employees must be excluded from the class in both of these 17 cases in any event. The employees who did the prep kitchen work and not the work on the 18 food trucks brought, settled and released all claims relating to another class action lawsuit 2 19 against Defendants for the same alleged wage and hour violations. (Exhs. 8-10; RJN ¶¶ 8- 20 10; Decl. ¶¶ 9-12.) Apart from including employees who worked on the food trucks, the 21 alleged class definition in this case is virtually identical in its terms, and is identical in 22 substance, to the settlement class in that other lawsuit. (Exh. 4 ¶ 22; Exh. 9 at 2:4-7.) 23 A further category of employees who likewise cannot participate in this suit or the 24 Alameda Lawsuit consists of the “InsTrucktional Entrepreneurs” who are expressly carved 25 26 2Reyes v. The Whole Cart, LLC and Off The Grid Services, LLC, San Francisco 27 County Superior Court Case No. CGC-20-584861, which is assigned to this Department of this Court. The Court entered judgment therein on September 16, 2022. A status 28 conference regarding final settlement distributions is set for May 5, 2023. 7 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603 1 out of the alleged class definition in this case; the employees who held that position worked 2 on the food trucks and they brought, and settled and released all claims relating to, still 3 another class action lawsuit 3 against Defendants for the same alleged wage and hour 4 violations. (Exhs. 11, 12; RJN ¶¶ 11, 12; Decl. ¶¶ 9, 13, 14.) 5 The complaint in the Alameda Lawsuit alleges five causes of action, the first four of 6 which are alleged under the Labor Code: (1) failure to provide meal periods to the class 7 members, (2) failure to authorize and permit rest breaks for the class members, (3) failure 8 to indemnify the class members for business expenses, (4) waiting time penalties for failure 9 to timely pay final wages, and (5) unfair competition under Business & Professions Code §§ 10 17200, et seq. (Exh. 1, passim.) The complaint herein alleges the same five causes of 11 action (as the Fourth, Fifth, Sixth, Eighth, and Ninth Causes of Action herein). (Exh. 4, 12 passim.) The complaint herein additionally sets forth three claims of failure to pay wages 13 (for all hours worked, minimum wages, and overtime wages), and a claim of failure to 14 provide accurate itemized wage statements. (Id.) 15 The affirmative defenses that Defendants allege in the Alameda Lawsuit and in this 16 lawsuit are nearly identical, too. (Exhs. 2, 3, 5; RJN ¶¶ 2, 3, 5; Decl. ¶¶ 3, 4, 6.) A pertinent 17 difference is that herein Defendants allege the affirmative defense of the doctrine of 18 exclusive concurrent jurisdiction and that this case should be stayed pursuant thereto. (Id.) 19 D. Analysis. 20 The issues in the Alameda Lawsuit and this lawsuit are substantially the same. The 21 facts and evidence summarized above demonstrate that the same causes of action are 22 asserted against the same Defendants, on behalf of two classes of the same employees, 23 with regard to the same time frame. There may be some minor differences in how these 24 two lawsuits are currently pleaded, and other minor differences at their fringes; however, as 25 the case law supra establishes, such differences do not impact the applicability of the rule 26 of exclusive concurrent jurisdiction. 27 O’Neal-Roberts v. Off The Grid Services, LLC and The Whole Cart, LLC, Alameda 3 28 County Superior Court Case No. RG20075270. 8 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603 1 The Alameda County Superior Court and this Court have concurrent jurisdiction over 2 the subject matter of these two suits. The Alameda County Superior Court and this Court 3 equally have jurisdiction over the parties, the power to bring all necessary parties before 4 them and the power to litigate all the issues and grant all the relief to which anyone might 5 be entitled in these suits. See, e.g., Long v. Forty Niners Football Co., LLC (2019) 33 6 Cal.App.5th 550, 556 (“superior courts are courts of general subject matter jurisdiction and 7 can adjudicate any and all cases before them” subject to inapplicable exceptions); Cal. Civ. 8 Proc. Code § 71 (“The process of superior courts shall extend throughout the state”). 9 Because they involve the same subjects, and in light of the many facts above, these 10 two suits have the potential to result in conflicting judgments. Pursuant to the rule of 11 exclusive concurrent jurisdiction, the subjects of these suits should be litigated and 12 resolved in one Superior Court case, not two. This is necessary to achieve the purposes 13 upon which the rule is based: to avoid conflicting decisions between courts, to avoid the 14 burden and expense of unnecessary multiple lawsuits, and to increase judicial efficiency. 15 Pursuant to the rule, this litigation must proceed before the Superior Court in the 16 first-filed case and should be stayed in the second-filed case. The Alameda Lawsuit is the 17 first case; this lawsuit is the second case. Therefore, this Court should stay this case. 18 As case law explains, a stay of this case is “mandatory.” The law is uncertain as to 19 whether a stay is mandatory period, or mandatory unless countervailing policies outweigh 20 the policies giving rise to exclusive concurrent jurisdiction. That distinction makes no 21 difference here, because either way the result is the same: the Court should stay this 22 lawsuit. If a stay is mandatory period, then the analysis ends there, and this second-filed 23 action must be stayed until a final resolution of the Alameda Lawsuit. If a stay is mandatory 24 unless, then the final question is whether there are relevant, countervailing policies that 25 outweigh the policies giving rise to exclusive concurrent jurisdiction – and the answer to this 26 question is “no.” No such policy exists, and no such policy outweighs the reasons for the 27 rule. Thus in this event as well, this second-filed action must be stayed until a final 28 resolution of the Alameda Lawsuit. 9 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603 1 E. Conclusion. 2 The facts and circumstances of the Alameda Lawsuit and this lawsuit make the 3 doctrine of exclusive concurrent jurisdiction applicable here. That concurrent jurisdiction 4 attached first in Alameda County, because that lawsuit was filed before this one. The 5 Alameda County Superior Court is the “exclusive” court, the proper court, for determination 6 of all of the issues. This Court, therefore, should stay this later-filed lawsuit until the matter 7 is resolved in the Alameda Lawsuit. 8 9 Dated: April 21, 2023 SCHRINER LAW FIRM, PC 10 11 /s/ Kyle L. Schriner Attorneys for Defendants 12 THE WHOLE CART, LLC and OFF THE GRID SERVICES, LLC 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 MEMORANDUM IN SUPPORT OF MOTION TO STAY; CASE NO. CGC-22-603603