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1 Timothy J. Long (SBN 137591) FlLEO/ENDOBSED
longt@gtlaw.com
2 Samuel S. Hyde (SBN 327065)
hydes@gtlaw.com AU6 27 ?02ll
3 GREENBERG TRAURIG, LLP
1201 K Street, Suite 1100 By: M. Rubalcaba
Deputy Clerk
4 Sacramento, (ialifomia 95814
Telephone: 916.442.1111
5 Facsimile: 916.448.1709
6 Rowena Santos (SBN 210185)
santosro@gtlaw.com
7 GREENBERG TRAURIG, LLP
18565 Jamboree Road, Suite 500
8 Irvine, Califomia 92612
Telephone: 949.732.6500
9 Facsimile: 949.732.6501
10 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
[
13 COUNTY OF SACRAMENTO !
14
ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-0,0210560-CU-OE-GDS
15 herself and on behalf of all persons similarly (Consolidated with Case No. 34-2017-00216685-CU-
situated. OE-GDS) ,
16 j
Plaintiff, NOTICE OF SUPPLEMENTAL AUTHORITY
V.
17
HEALTH NET OF CALIFORNIA, INC., a Dept: 41 !
18 Califomia corporation; and DOES 1 through 50, Judge: Hon. David De Alba
inclusive,
19 Complaint Filed: April 5,2017
Defendants. FACFiled: June 29, 2017
20
21 TOMAS R. ARANA, on behalf of himself, all
others similarly situated.
22
Plaintiff,
23 V.
24 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1 through 50,
25 inclusive. Complaint Filed: August 1, 2017
Defendants. Consolidated Complaint Filed: Dec. 21, 2017
26
27
28
NOTICE OF SUPPLEMENTAL AUTHORITY
1 NOTICE OF SUPPLEMENTAL AUTHORITY
2 In connection with the motions to strike claims under the Private Attomeys General Act currently
3 under submission before this Court, Defendant Health Net of California, Inc. ("HNCA") respectfully
4 submits the following supplemental authority for the Court's consideration: Robinson v. Southern Counties
5. Oil Co., No. A158791, 2020 WL 4696742 (Cal. Ct. App. Aug. 13, 2020). The opinion is attached hereto
6 as Exhibit A. This opinion was issued after briefing in this matter was completed, and pages 3—4 are
7 directly relevant to the standing arguments advanced by HNCA at pages 14—15 of its memorandum of
8 points and authorities in support of its motion to strike Arana's representative PAGA claims.
9
10 Dated: August 27, 2020 GREENBERG TRAURIG, LLP
11
12 By:
TIMOTHY J. LONG
13 ROWENA SANTOS
SAMUEL S. HYDE
14
Attomeys for Defendant
15 HEALTH NET OF CALIFORNIA, INC.
16
17
18
19
20
.21
22
23
24
25
26
27
28
NOTICE OF SUPPLEMENTAL AUTHORITY
1 Andrea Spears, et al. vs. Health Net of Califomia, Inc.
Sacramento County Superior Court Case No. 34-2017-00210560 ,
2
DECLARATION OF SERVICE
3
I am a citizen of the United States, over the age of 18 years, and not a party to or
4 interested in this action. I am employed in the County of Sacramento, State of California and my
business address is Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, GA 95814.
5
On this day, I caused to be served the following document(s): i
6
NOTICE OF SUPPLEMENTAL AUTHORITY
7
By placing Q the original ^ a true copy into sealed envelopes addressed and served as
8 follows:
9 Norrrian Blumenthal
Aparajit Bhowmik Attorneys for PlaintiffAndrea Spears
10 Piya Mukherjee
Victoria B. Rivapalacio
11 BLUMENTHAL, NORDREHAUG &
BHOWMIK LLP
12 2255 Calle Clara
La Jolla, CA 92037 i
13 Email: norm@bamlawca.com •
Telephone: (858)551-1223
14 Facsimile: (858)551-1232
15 Shaun Setareh
William Pao Attorneys for Plaintiff Tomas R. Arana
16 Alex Mcintosh
SETAREH LAW GROUP
17
18
19
315 S. Beverly Drive, Suite 315
Beverly Hills, CA 90212
Email: shauntSjsetarehlaw.com
william (olsetarehlaw.com
alex(a),setarehlaw.com
Telephone: (310)888-7771 1
•
20 Facsimile: (310)888-0109
21 3 BY ELECTRONIC TRANSMISSION: By transmitting a tme and a correct copy
thereof attached to the electronic email address(es) as set forth above. |
22
I declare under penalty of perjury under the laws of the State of Califomia that the
23 foregoing is tme and correct.
24 Executed on August 27, 2020, at Sacramento, Califomia. '
25
Marlene Cells
26
27
28
1
PROOF OF SERVICE
EXHIBIT A
Robinson v. Southern Counties Oil Company, — Cal.Rptr.3d — (2020)
20 Cal. Daily Op. Serv. 8165
2018, after filing the required notice with the Califomia
Labor Workforce Development Agency (LWDA), he filed
2020 WL 4696742
Court of Appeal, First District, Division 4, Califomia. the present PAGA action against Southern Counties. His
complaint alleges that Southem Counties denied Robinson
Richard ROBINSON, and other aggrieved employees meal and rest breaks in
violation of sections 226.7 and 512. The complaint alleges
Plaintiff and Appellant, that as a result of the unlawful denial of breaks, Southem
V. Counties failed to pay timely wages (§ 204), fiimish complete
SOUTHERN COUNTIES OIL and accurate wage statements (§§ 226, subd. (a), 226.3), and
pay all wages due upon termination (§§ 201, 202).
COMPANY, Defendant and Respondent.
In Febmary 2019, the San Diego County Superior Court
A158791
approved a settlement in a class action that sought individual
I damages as well as civil penalties under PAGA for the
Filed 8/13/2020
same alleged Labor Code violations. {Gutierrez v. Southern
Trial court: Contra Costa County Superior Court, Trial judge: Counties Oil Co., case No. 37-2017-00040850-CU-OE-CTL
Honorable Jill Fannin (Contra Costa County Super. Ct. No. (Gutierrez).) The settlement covered all persons employed
MSC1801691) by Southem Counties in certain job classifications between
March 17, 2013 and January 26, 2018.
Attomeys and Law Firms
Robinson and three other employees opted out of the class
Counsel for plaintiff and appellant: BURTON settlement. Thereafter, Robinson amended the allegations of
EMPLOYMENT LAW, Jocelyn Burton, Oakland. his complaint to represent employees of Southem Counties
Counsel for defendant and respondent: PAYNE & FEARS who opted out of the settlement in Gutierrez and persons who
LLP, Sean A. O'Brien, Amy R. Patton, Irvine, Raymond J. were employed by Southem Counties from January 27, 2018
Nhan. to the present.
Opinion In July 2019, the court sustained without leave to amend
a demurrer to the amended complaint. The court held that
POLLAK, P J. Robinson is barred from bringing a PAGA action asserting
the same claims that were settled in Gutierrez and that he
*1 Plaintiff Richard Robinson, on behalf of himself and
lacks standing to bring a representative action on behalf of
other aggrieved employees, appeals from the judgment
employees employed during the time period when he was no
entered in favor of his former employer defendant Southern
Counties Oil Company (Southern Counties). Robinson's longer employed by Southem County.
complaint seeks civil penalties under the Labor Code Private
*2 Following entry of thejudgment, Robinson timely filed
Attomeys General Act of 2004 (PAGA) (Lab. Code,' § 2698
a notice of appeal.
et seq.) based on Southern Counties's alleged unlawful denial
of meal and rest breaks. Robinson contends the court erred
in holding that he is barred by claim prelusion from asserting
certain of the Labor Code violations alleged in his cpmplaint Discussion
and that he lacks standing with respect to the remaining I
alleged violations. We shall affirm. 1. Standard ofReview
"When a demurrer is sustained by the trial court, we review
the complaint de novo to determine whether, as a matter of
law, the complaint states facts sufficient to constitute a cause
Background of action. [Citation.] Reading the complaint as a whole and
giving it a reasonable interpretation, we treat all material
Robinson worked as a truck driver for Southern Counties
facts properly pleaded as tme. [Citation.] The plaintiff has
from February 4, 2015 through June 14, 2017. In August
the burden of showing that the facts pleaded are sufficient to
WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works.
Robinson v. Southern Counties Oil Company, — Cal.Rptr.3d — (2020)
20 Cal. Daily Op. Serv. 8165
establish every element of the cause of action and overcoming action under [PAGA] functions as a substitute for an action
all of the legal grounds on which the trial court sustained the brought by the govemment itself, a judgment in that action
demurrer, and if the defendant negates any essential element, binds all those, including nonparty aggrieved employees, who
we will affirm the order sustaining the demurrer as to the would be bound by a judgment in an action brought by the
cause of action." (Maf/z>7 V. Bridgeport Community Assn., Inc. govemment. The act authorizes a representative action only
(2009) 173 Cal.App.4th 1024, 1031, 93 Cal.Rptr.3d 405.) for the purpose of seeking statutory penalties for Labor Code
violations [citations], and an action to recover civil penalties
"The court may sustain a demurrer on claim preclusion 'is fiindamentally a law enforcement action designed to
grounds '[i]f all of the facts necessary to show that the protect the public and not to benefit private parties' [citation].
action is barred are within the complaint or subject to judicial When a government agency is authorized to bring an action on
notice ....' " (Thompson v. loane (2017) 11 Cal.App.5th behalf of an individual or in the public interest, and a private
1180, 1191, 218 Cal.Rptr.3d 501.) "Standing is the threshold person lacks an independent legal right to bring the action,
element required to state a cause of action and, thus, lack of a person who is not a party but who is represented by the
standing may be raised by demurrer." (Martin v. Bridgeport agency is bound by thejudgment as though the person were a
Community Assn., Inc., supra, 173 Cal.App.4th at p. 1031,93 party. [Citation.] Accordingly, with respect to the recovery of
Cal.Rptr.3d405.) civil penalties, nonparty employees as well as tlie govemment
are bound by the judgment in an action brought under the
act." {Arias v. Superior Court (2009) 46 Cal.4th 969, 986, 95
2. The doctrine ofclaim preclusion bars Robinson's claims Cal.Rptr.3d 588, 209 P3d 923.)
witii respect to violations settled in Gutierrez.
"The claim preclusion doctrine, formerly called res judicata, *3 In Kim v. Reins International California, Inc., supra,
'prohibits a second suit between the same parties on the 9 Cal.5th at pages 86-87, 259 Cal.Rptr.3d 769, 459 R3d
same cause of action.' [Citation.] 'Claim preclusion arises if a 1123, the court confirmed, "PAGA claims are different from
second suit involves (1) the same cause of action (2) between conventional civil suits. The Legislature's sole purpose in
the same parties (3) after a final judgment on the merits in enacting PAGA was 'to augment the limited enforcement
the first suit.' " {Kim v. Reins International California, Inc. capability of the [LWDA] by empowering employees
(2020) 9 Cal.5th 73, 91,259 Cal.Rptr.3d 769,459 P3d 1123; to enforce the Labor Code as representatives of the
Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, Agency.' [Citations.] Accordingly, a PAGA claim is an
575, 117 Cal.Rptr.3d 398 [" 'Under the doctrine of [claim enforcement action between the LWDA and the employer,
preclusion], a valid,finaljudgment on the merits is a bar to a with the PAGA plaintiff acting on behalf of the govemment.
subsequent action by parties or their privies on the same cause [Citation.] ... [^ Although representative in nature, a PAGA
of action.'"].) The doctrine " ' "rests upon the ground that the claim is not simply a collection of individual claims for
party to be affected, or some other with whom he is in privity, relief, and so is different from a class action. The latter is a
has litigated, or had an opportunity to litigate the same matter procedural device for aggregating claims 'when the parties
in a former action in a court of competent jurisdiction, and are numerous, and it is impracticable to bring them all before
should not be permitted to litigate it again to the harassment the court.' [Citation.] In a class action, the 'representative
and vexation of his opponent. Public policy and the interest plaintiff still possesses only a single claim for relief—
of litigants alike require that there be an end to litigation." ' the plaintiffs own.' [Citation.] If a representative plaintiff
" {Villacres, supra, at p. 575, 117 Cal.Rptr.3d 398.) voluntarily settles her claim, she no longer has an interest
in the class action and may lose the ability to represent the
Here, there is no dispute that the present action and the class. [Citation.] 'But a representative action under PAGA
Gutierrez action involve PAGA claims based on the same is not a class action.' [Citation.] There is no individual
alleged violations of the Labor Code. Robinson asserts that component to a PAGA action because ' "every PAGA
because he opted out of the Gutierrez action, the doctrine of action ... is a representative action on behalf of the state."
claim preclusion does not apply. We disagree. ' [Citation.] Plaintiffs may bring a PAGA claim only as
the state's designated proxy, suing on behalf of all affected
While Robison was free to, and did, opt out of the class employees." (See also Julian v. Glenair, Inc. (2017) 17
settlement of any individual claims he may have had, there Cal.App.5th 853, 871-872, 225 Cal.Rptr.3d 798 ["A PAGA
is no mechanism for opting out of the judgment entered action is ... ultimately founded on a right belonging to the
on the PAGA claim. "Because an aggrieved employee's
WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works.
Robinson v. Southern Counties Oil Company, — Cal.Rptr.3d — (2020)
20 Cal. Daily Op. Serv. 8165
state, which—though not named in the action—is the real that he "did not lose his standing as an aggrieved employee
party in interest."].) because of the Gutierrez settlement." We disagree.
The Gutierrez settlement, and resulting judgment finally A change in facts or law can deprive a plaintiff of standing.
resolved the LWDA's claims with respect to the violations (See, e.g., Caiifomiansfor Disability Rights v. Mervyn's, LLC
alleged in that action. Robinson cannot opt out of that (2006) 39 Cal.4th 223, 230-231, 46 Cal.Rptr.3d 57, 138 P3d
settlement and thereafter pursue civil penalties for the same 207 [change in law may limit plaintiffs standing]; Grosset
violations again on behalf of the LWDA. Accordingly, the V. Wenaas (2008) 42 Cal.4th 1100, 1119, 72 Cal.Rptr3d
doctrine of claim preclusion bars relitigation of the claim for 129, 175 P.3d 1184 [a plaintiff in a shareholder's derivative
civil penalties based on the Labor Code violations resolved in suit who ceases to be a stockholder may lose standing to
Gutierrez. (See Arias v. Superior Court, supra, 46 Cal.4th at continue the litigation].) Here, the preclusion of Robinson's
p. 986,95 Cal.Rptr.3d 588,209 R3d 923 ["Because collateral claims for the period during which he was employed by
estoppel applies not only against a party to the prior action Southem County deprives him of standing to assert claims
in which the issue was determined, but also against those arising exclusively after he was so employed. (See Shook
for whom the party acted as an agent or proxy [citations], a V. Indian River Transp. Co. (E.D. Cal. 201?) 236 F.Supp.3d
judgment in an employee's action under [PAGA] binds not 1165, 1175 [plaintiffs were deprived of standing to pursue
only that employee but also the state labor law enforcement PAGA claims against employer after application of the safe
agencies."].) harbor provision (§ 226.2) reduced time period for actionable
violations to 36 pay periods during which plaintiffs were no
longer employed].)
3. Robinson lacks standing to bring a representative action
for violations occurring after January 27, 2018. *4 Contrary to Robinson's argument, the Supreme Court's
Section 2699, subdivision (a) authorizes an "aggrieved recent decision in Kim v. Reins International California,
employee" to bring an action "on behalf of himself or Inc., supra, 9 Cal.5th 73, 259 Cal.Rptr.3d 769, 459 P3d
herself and other current or former employees." Section 2699, 1123 does not compel a different result. In Kim, the court
subdivision (c) . defines an "aggrieved employee" as "any rejected the employer's ai-gument that the plaintiff no longer
person who was employed by the alleged violator and against had standing as an "aggrieved employee" after he settled
whom one or more of the alleged violations was committed." his individual claims with his former employer. The court
The violations for which penalties are sought are determined explained that "[t]he Legislature defined PAGA standing in
by the allegations of the complaint. {Huffv. Securitas Security terms of violations, not injury" so that a person's receipt
Services USA, Inc. (2018) 23 Cal.App.5th 745, 754, 233 of compensation for his injury does not defeat his standing
Cal.Rptr.3d 502 [Under Section 2699, subdivision (c), "any to assert a PAGA claim. (W. at pp. 84-85, 259 Cal.Rptr.3d
Labor Code penalties recoverable by state authorities may be 769, 459 P.3d 1123, citing Kirby v. Immoos Fire Protection,
recovered in a PAGA action by a person who was employed Inc. (2012) 53 Cal.4th 1244, 1256, 140 Cal.Rptr.3d 173,274
by the alleged violator and affected by at least one of P.3d 1160 [payment of statutory remedy does not excuse
the violations alleged in the complaint." (Italics added.) ] ; Labor Code violation] & Raines v. Coastal Pacific Food
Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 60, 247 Distributors, Inc. (2018) 23 Cal.App.5th 667, 678-680, 234
Cal.Rptr.3d 875 [noting that plaintiff had narrowed her PAGA Cal.Rptr.3d 1 [plaintiff is not required to show a quantifiable
claim to rest on alleged violations occurring before a certain injury in PAGA action for civil penalties].) Kim does not
date.].) support Robinson's argument that he has standing to pursue
claims based solely on violations alleged to have occurred
Here, Robinson purports to bring a representative action
after his termination.'*
based on violations alleged to have occurred after the period
covered in Gutierrez that is, after January 27,2018. By then,
however, Robinson was no longer employed by Southem
Counties and thus was not affected by any of the alleged Disposition
violations. Robinson does not suggest that he has standing to
bring an action based solely on these violations, but contends Thejudgment is affirmed.
that he had standing at the time he filed his complaint and
WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works.
Robinson v. Southem Counties Oil Company, — Cal.Rptr.3d — (2020)
20 Cal. Daily Op. Serv. 8165
WE CONCUR:
All Citations
STREETER, J. — Cal.Rptr.3d 2020 WL 4696742, 20 Cal. Daily Op.
Serv. 8165
BROWN, J.
Footnotes
1 All further statutory references are to the Labor Code unless otherwise noted.
2 "Under PAGA, an 'aggrieved employee,' acting as a private attorney general, may bring a civil action personally and on
behalf of other current or former employees to recover civil penalties for Labor Code violations. [Citation.] The employee
may not file his or her PAGA claim for particular labor law violations until first giving [LWDA] the opportunity to investigate
and file the claim itself [citations] and, if [LWDA] elects not to get involved, [it] is nevertheless legally bound by the outcome
ofthe employee-prosecuted PAGA claim [citations].' [Citation.] Ifthe PAGA action results in penalties, LWDA recovers
75 percent and the aggrieved employees recovers the remaining 25 percent of those penalties." {Brooks v. AmeriHome
Mortgage Co., LLC (2020) 47 Cal.App.5th 624, 628-629, 260 Cal.Rptr.3d 428.) |
3 Robinson's first cause of action for unlawful denial pf meal and rest breaks seeks to recover "the wages, civil penalties,
attorney's fees and costs recoverable in a civil action brought by an aggrieved employee on behalf of himself and, as a
proxy for the LWDA, on behalf of defendants' other current and former employees." The trial court found that Robinson's
amended complaint alleges "the same four PAGA claims as the original complaint, and no individual claims." Robinson
has not asserted either in the trial court or before this court that the demurrer was improperly sustained as to any individual
claim he may have for lost wages or damages.
4 In light of these conclusions, we do not reach Southern Counties's additional arguments that the demurrer was properly
sustained because Robinson failed to satisfy the LWDA notice requirements or because his claims are preempted by
two federal regulatory orders governing interstate transportation carriers. ,
End of Document . ©2020 Thomson Reuters. No claim to originaiU.S.
Government Works.
WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works.
Preview
1 Timothy J. Long (SBN 137591) FlLEO/ENDOBSED longt@gtlaw.com 2 Samuel S. Hyde (SBN 327065) hydes@gtlaw.com AU6 27 ?02ll 3 GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 By: M. Rubalcaba Deputy Clerk 4 Sacramento, (ialifomia 95814 Telephone: 916.442.1111 5 Facsimile: 916.448.1709 6 Rowena Santos (SBN 210185) santosro@gtlaw.com 7 GREENBERG TRAURIG, LLP 18565 Jamboree Road, Suite 500 8 Irvine, Califomia 92612 Telephone: 949.732.6500 9 Facsimile: 949.732.6501 10 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA [ 13 COUNTY OF SACRAMENTO ! 14 ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-0,0210560-CU-OE-GDS 15 herself and on behalf of all persons similarly (Consolidated with Case No. 34-2017-00216685-CU- situated. OE-GDS) , 16 j Plaintiff, NOTICE OF SUPPLEMENTAL AUTHORITY V. 17 HEALTH NET OF CALIFORNIA, INC., a Dept: 41 ! 18 Califomia corporation; and DOES 1 through 50, Judge: Hon. David De Alba inclusive, 19 Complaint Filed: April 5,2017 Defendants. FACFiled: June 29, 2017 20 21 TOMAS R. ARANA, on behalf of himself, all others similarly situated. 22 Plaintiff, 23 V. 24 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1 through 50, 25 inclusive. Complaint Filed: August 1, 2017 Defendants. Consolidated Complaint Filed: Dec. 21, 2017 26 27 28 NOTICE OF SUPPLEMENTAL AUTHORITY 1 NOTICE OF SUPPLEMENTAL AUTHORITY 2 In connection with the motions to strike claims under the Private Attomeys General Act currently 3 under submission before this Court, Defendant Health Net of California, Inc. ("HNCA") respectfully 4 submits the following supplemental authority for the Court's consideration: Robinson v. Southern Counties 5. Oil Co., No. A158791, 2020 WL 4696742 (Cal. Ct. App. Aug. 13, 2020). The opinion is attached hereto 6 as Exhibit A. This opinion was issued after briefing in this matter was completed, and pages 3—4 are 7 directly relevant to the standing arguments advanced by HNCA at pages 14—15 of its memorandum of 8 points and authorities in support of its motion to strike Arana's representative PAGA claims. 9 10 Dated: August 27, 2020 GREENBERG TRAURIG, LLP 11 12 By: TIMOTHY J. LONG 13 ROWENA SANTOS SAMUEL S. HYDE 14 Attomeys for Defendant 15 HEALTH NET OF CALIFORNIA, INC. 16 17 18 19 20 .21 22 23 24 25 26 27 28 NOTICE OF SUPPLEMENTAL AUTHORITY 1 Andrea Spears, et al. vs. Health Net of Califomia, Inc. Sacramento County Superior Court Case No. 34-2017-00210560 , 2 DECLARATION OF SERVICE 3 I am a citizen of the United States, over the age of 18 years, and not a party to or 4 interested in this action. I am employed in the County of Sacramento, State of California and my business address is Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, GA 95814. 5 On this day, I caused to be served the following document(s): i 6 NOTICE OF SUPPLEMENTAL AUTHORITY 7 By placing Q the original ^ a true copy into sealed envelopes addressed and served as 8 follows: 9 Norrrian Blumenthal Aparajit Bhowmik Attorneys for PlaintiffAndrea Spears 10 Piya Mukherjee Victoria B. Rivapalacio 11 BLUMENTHAL, NORDREHAUG & BHOWMIK LLP 12 2255 Calle Clara La Jolla, CA 92037 i 13 Email: norm@bamlawca.com • Telephone: (858)551-1223 14 Facsimile: (858)551-1232 15 Shaun Setareh William Pao Attorneys for Plaintiff Tomas R. Arana 16 Alex Mcintosh SETAREH LAW GROUP 17 18 19 315 S. Beverly Drive, Suite 315 Beverly Hills, CA 90212 Email: shauntSjsetarehlaw.com william (olsetarehlaw.com alex(a),setarehlaw.com Telephone: (310)888-7771 1 • 20 Facsimile: (310)888-0109 21 3 BY ELECTRONIC TRANSMISSION: By transmitting a tme and a correct copy thereof attached to the electronic email address(es) as set forth above. | 22 I declare under penalty of perjury under the laws of the State of Califomia that the 23 foregoing is tme and correct. 24 Executed on August 27, 2020, at Sacramento, Califomia. ' 25 Marlene Cells 26 27 28 1 PROOF OF SERVICE EXHIBIT A Robinson v. Southern Counties Oil Company, — Cal.Rptr.3d — (2020) 20 Cal. Daily Op. Serv. 8165 2018, after filing the required notice with the Califomia Labor Workforce Development Agency (LWDA), he filed 2020 WL 4696742 Court of Appeal, First District, Division 4, Califomia. the present PAGA action against Southern Counties. His complaint alleges that Southem Counties denied Robinson Richard ROBINSON, and other aggrieved employees meal and rest breaks in violation of sections 226.7 and 512. The complaint alleges Plaintiff and Appellant, that as a result of the unlawful denial of breaks, Southem V. Counties failed to pay timely wages (§ 204), fiimish complete SOUTHERN COUNTIES OIL and accurate wage statements (§§ 226, subd. (a), 226.3), and pay all wages due upon termination (§§ 201, 202). COMPANY, Defendant and Respondent. In Febmary 2019, the San Diego County Superior Court A158791 approved a settlement in a class action that sought individual I damages as well as civil penalties under PAGA for the Filed 8/13/2020 same alleged Labor Code violations. {Gutierrez v. Southern Trial court: Contra Costa County Superior Court, Trial judge: Counties Oil Co., case No. 37-2017-00040850-CU-OE-CTL Honorable Jill Fannin (Contra Costa County Super. Ct. No. (Gutierrez).) The settlement covered all persons employed MSC1801691) by Southem Counties in certain job classifications between March 17, 2013 and January 26, 2018. Attomeys and Law Firms Robinson and three other employees opted out of the class Counsel for plaintiff and appellant: BURTON settlement. Thereafter, Robinson amended the allegations of EMPLOYMENT LAW, Jocelyn Burton, Oakland. his complaint to represent employees of Southem Counties Counsel for defendant and respondent: PAYNE & FEARS who opted out of the settlement in Gutierrez and persons who LLP, Sean A. O'Brien, Amy R. Patton, Irvine, Raymond J. were employed by Southem Counties from January 27, 2018 Nhan. to the present. Opinion In July 2019, the court sustained without leave to amend a demurrer to the amended complaint. The court held that POLLAK, P J. Robinson is barred from bringing a PAGA action asserting the same claims that were settled in Gutierrez and that he *1 Plaintiff Richard Robinson, on behalf of himself and lacks standing to bring a representative action on behalf of other aggrieved employees, appeals from the judgment employees employed during the time period when he was no entered in favor of his former employer defendant Southern Counties Oil Company (Southern Counties). Robinson's longer employed by Southem County. complaint seeks civil penalties under the Labor Code Private *2 Following entry of thejudgment, Robinson timely filed Attomeys General Act of 2004 (PAGA) (Lab. Code,' § 2698 a notice of appeal. et seq.) based on Southern Counties's alleged unlawful denial of meal and rest breaks. Robinson contends the court erred in holding that he is barred by claim prelusion from asserting certain of the Labor Code violations alleged in his cpmplaint Discussion and that he lacks standing with respect to the remaining I alleged violations. We shall affirm. 1. Standard ofReview "When a demurrer is sustained by the trial court, we review the complaint de novo to determine whether, as a matter of law, the complaint states facts sufficient to constitute a cause Background of action. [Citation.] Reading the complaint as a whole and giving it a reasonable interpretation, we treat all material Robinson worked as a truck driver for Southern Counties facts properly pleaded as tme. [Citation.] The plaintiff has from February 4, 2015 through June 14, 2017. In August the burden of showing that the facts pleaded are sufficient to WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. Robinson v. Southern Counties Oil Company, — Cal.Rptr.3d — (2020) 20 Cal. Daily Op. Serv. 8165 establish every element of the cause of action and overcoming action under [PAGA] functions as a substitute for an action all of the legal grounds on which the trial court sustained the brought by the govemment itself, a judgment in that action demurrer, and if the defendant negates any essential element, binds all those, including nonparty aggrieved employees, who we will affirm the order sustaining the demurrer as to the would be bound by a judgment in an action brought by the cause of action." (Maf/z>7 V. Bridgeport Community Assn., Inc. govemment. The act authorizes a representative action only (2009) 173 Cal.App.4th 1024, 1031, 93 Cal.Rptr.3d 405.) for the purpose of seeking statutory penalties for Labor Code violations [citations], and an action to recover civil penalties "The court may sustain a demurrer on claim preclusion 'is fiindamentally a law enforcement action designed to grounds '[i]f all of the facts necessary to show that the protect the public and not to benefit private parties' [citation]. action is barred are within the complaint or subject to judicial When a government agency is authorized to bring an action on notice ....' " (Thompson v. loane (2017) 11 Cal.App.5th behalf of an individual or in the public interest, and a private 1180, 1191, 218 Cal.Rptr.3d 501.) "Standing is the threshold person lacks an independent legal right to bring the action, element required to state a cause of action and, thus, lack of a person who is not a party but who is represented by the standing may be raised by demurrer." (Martin v. Bridgeport agency is bound by thejudgment as though the person were a Community Assn., Inc., supra, 173 Cal.App.4th at p. 1031,93 party. [Citation.] Accordingly, with respect to the recovery of Cal.Rptr.3d405.) civil penalties, nonparty employees as well as tlie govemment are bound by the judgment in an action brought under the act." {Arias v. Superior Court (2009) 46 Cal.4th 969, 986, 95 2. The doctrine ofclaim preclusion bars Robinson's claims Cal.Rptr.3d 588, 209 P3d 923.) witii respect to violations settled in Gutierrez. "The claim preclusion doctrine, formerly called res judicata, *3 In Kim v. Reins International California, Inc., supra, 'prohibits a second suit between the same parties on the 9 Cal.5th at pages 86-87, 259 Cal.Rptr.3d 769, 459 R3d same cause of action.' [Citation.] 'Claim preclusion arises if a 1123, the court confirmed, "PAGA claims are different from second suit involves (1) the same cause of action (2) between conventional civil suits. The Legislature's sole purpose in the same parties (3) after a final judgment on the merits in enacting PAGA was 'to augment the limited enforcement the first suit.' " {Kim v. Reins International California, Inc. capability of the [LWDA] by empowering employees (2020) 9 Cal.5th 73, 91,259 Cal.Rptr.3d 769,459 P3d 1123; to enforce the Labor Code as representatives of the Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, Agency.' [Citations.] Accordingly, a PAGA claim is an 575, 117 Cal.Rptr.3d 398 [" 'Under the doctrine of [claim enforcement action between the LWDA and the employer, preclusion], a valid,finaljudgment on the merits is a bar to a with the PAGA plaintiff acting on behalf of the govemment. subsequent action by parties or their privies on the same cause [Citation.] ... [^ Although representative in nature, a PAGA of action.'"].) The doctrine " ' "rests upon the ground that the claim is not simply a collection of individual claims for party to be affected, or some other with whom he is in privity, relief, and so is different from a class action. The latter is a has litigated, or had an opportunity to litigate the same matter procedural device for aggregating claims 'when the parties in a former action in a court of competent jurisdiction, and are numerous, and it is impracticable to bring them all before should not be permitted to litigate it again to the harassment the court.' [Citation.] In a class action, the 'representative and vexation of his opponent. Public policy and the interest plaintiff still possesses only a single claim for relief— of litigants alike require that there be an end to litigation." ' the plaintiffs own.' [Citation.] If a representative plaintiff " {Villacres, supra, at p. 575, 117 Cal.Rptr.3d 398.) voluntarily settles her claim, she no longer has an interest in the class action and may lose the ability to represent the Here, there is no dispute that the present action and the class. [Citation.] 'But a representative action under PAGA Gutierrez action involve PAGA claims based on the same is not a class action.' [Citation.] There is no individual alleged violations of the Labor Code. Robinson asserts that component to a PAGA action because ' "every PAGA because he opted out of the Gutierrez action, the doctrine of action ... is a representative action on behalf of the state." claim preclusion does not apply. We disagree. ' [Citation.] Plaintiffs may bring a PAGA claim only as the state's designated proxy, suing on behalf of all affected While Robison was free to, and did, opt out of the class employees." (See also Julian v. Glenair, Inc. (2017) 17 settlement of any individual claims he may have had, there Cal.App.5th 853, 871-872, 225 Cal.Rptr.3d 798 ["A PAGA is no mechanism for opting out of the judgment entered action is ... ultimately founded on a right belonging to the on the PAGA claim. "Because an aggrieved employee's WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. Robinson v. Southern Counties Oil Company, — Cal.Rptr.3d — (2020) 20 Cal. Daily Op. Serv. 8165 state, which—though not named in the action—is the real that he "did not lose his standing as an aggrieved employee party in interest."].) because of the Gutierrez settlement." We disagree. The Gutierrez settlement, and resulting judgment finally A change in facts or law can deprive a plaintiff of standing. resolved the LWDA's claims with respect to the violations (See, e.g., Caiifomiansfor Disability Rights v. Mervyn's, LLC alleged in that action. Robinson cannot opt out of that (2006) 39 Cal.4th 223, 230-231, 46 Cal.Rptr.3d 57, 138 P3d settlement and thereafter pursue civil penalties for the same 207 [change in law may limit plaintiffs standing]; Grosset violations again on behalf of the LWDA. Accordingly, the V. Wenaas (2008) 42 Cal.4th 1100, 1119, 72 Cal.Rptr3d doctrine of claim preclusion bars relitigation of the claim for 129, 175 P.3d 1184 [a plaintiff in a shareholder's derivative civil penalties based on the Labor Code violations resolved in suit who ceases to be a stockholder may lose standing to Gutierrez. (See Arias v. Superior Court, supra, 46 Cal.4th at continue the litigation].) Here, the preclusion of Robinson's p. 986,95 Cal.Rptr.3d 588,209 R3d 923 ["Because collateral claims for the period during which he was employed by estoppel applies not only against a party to the prior action Southem County deprives him of standing to assert claims in which the issue was determined, but also against those arising exclusively after he was so employed. (See Shook for whom the party acted as an agent or proxy [citations], a V. Indian River Transp. Co. (E.D. Cal. 201?) 236 F.Supp.3d judgment in an employee's action under [PAGA] binds not 1165, 1175 [plaintiffs were deprived of standing to pursue only that employee but also the state labor law enforcement PAGA claims against employer after application of the safe agencies."].) harbor provision (§ 226.2) reduced time period for actionable violations to 36 pay periods during which plaintiffs were no longer employed].) 3. Robinson lacks standing to bring a representative action for violations occurring after January 27, 2018. *4 Contrary to Robinson's argument, the Supreme Court's Section 2699, subdivision (a) authorizes an "aggrieved recent decision in Kim v. Reins International California, employee" to bring an action "on behalf of himself or Inc., supra, 9 Cal.5th 73, 259 Cal.Rptr.3d 769, 459 P3d herself and other current or former employees." Section 2699, 1123 does not compel a different result. In Kim, the court subdivision (c) . defines an "aggrieved employee" as "any rejected the employer's ai-gument that the plaintiff no longer person who was employed by the alleged violator and against had standing as an "aggrieved employee" after he settled whom one or more of the alleged violations was committed." his individual claims with his former employer. The court The violations for which penalties are sought are determined explained that "[t]he Legislature defined PAGA standing in by the allegations of the complaint. {Huffv. Securitas Security terms of violations, not injury" so that a person's receipt Services USA, Inc. (2018) 23 Cal.App.5th 745, 754, 233 of compensation for his injury does not defeat his standing Cal.Rptr.3d 502 [Under Section 2699, subdivision (c), "any to assert a PAGA claim. (W. at pp. 84-85, 259 Cal.Rptr.3d Labor Code penalties recoverable by state authorities may be 769, 459 P.3d 1123, citing Kirby v. Immoos Fire Protection, recovered in a PAGA action by a person who was employed Inc. (2012) 53 Cal.4th 1244, 1256, 140 Cal.Rptr.3d 173,274 by the alleged violator and affected by at least one of P.3d 1160 [payment of statutory remedy does not excuse the violations alleged in the complaint." (Italics added.) ] ; Labor Code violation] & Raines v. Coastal Pacific Food Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 60, 247 Distributors, Inc. (2018) 23 Cal.App.5th 667, 678-680, 234 Cal.Rptr.3d 875 [noting that plaintiff had narrowed her PAGA Cal.Rptr.3d 1 [plaintiff is not required to show a quantifiable claim to rest on alleged violations occurring before a certain injury in PAGA action for civil penalties].) Kim does not date.].) support Robinson's argument that he has standing to pursue claims based solely on violations alleged to have occurred Here, Robinson purports to bring a representative action after his termination.'* based on violations alleged to have occurred after the period covered in Gutierrez that is, after January 27,2018. By then, however, Robinson was no longer employed by Southem Counties and thus was not affected by any of the alleged Disposition violations. Robinson does not suggest that he has standing to bring an action based solely on these violations, but contends Thejudgment is affirmed. that he had standing at the time he filed his complaint and WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. Robinson v. Southem Counties Oil Company, — Cal.Rptr.3d — (2020) 20 Cal. Daily Op. Serv. 8165 WE CONCUR: All Citations STREETER, J. — Cal.Rptr.3d 2020 WL 4696742, 20 Cal. Daily Op. Serv. 8165 BROWN, J. Footnotes 1 All further statutory references are to the Labor Code unless otherwise noted. 2 "Under PAGA, an 'aggrieved employee,' acting as a private attorney general, may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. [Citation.] The employee may not file his or her PAGA claim for particular labor law violations until first giving [LWDA] the opportunity to investigate and file the claim itself [citations] and, if [LWDA] elects not to get involved, [it] is nevertheless legally bound by the outcome ofthe employee-prosecuted PAGA claim [citations].' [Citation.] Ifthe PAGA action results in penalties, LWDA recovers 75 percent and the aggrieved employees recovers the remaining 25 percent of those penalties." {Brooks v. AmeriHome Mortgage Co., LLC (2020) 47 Cal.App.5th 624, 628-629, 260 Cal.Rptr.3d 428.) | 3 Robinson's first cause of action for unlawful denial pf meal and rest breaks seeks to recover "the wages, civil penalties, attorney's fees and costs recoverable in a civil action brought by an aggrieved employee on behalf of himself and, as a proxy for the LWDA, on behalf of defendants' other current and former employees." The trial court found that Robinson's amended complaint alleges "the same four PAGA claims as the original complaint, and no individual claims." Robinson has not asserted either in the trial court or before this court that the demurrer was improperly sustained as to any individual claim he may have for lost wages or damages. 4 In light of these conclusions, we do not reach Southern Counties's additional arguments that the demurrer was properly sustained because Robinson failed to satisfy the LWDA notice requirements or because his claims are preempted by two federal regulatory orders governing interstate transportation carriers. , End of Document . ©2020 Thomson Reuters. No claim to originaiU.S. Government Works. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works.