Preview
1 SEYFARTH SHAW LLP
Kerry M. Friedrichs (SBN 198143)
2 kfriedrichs@seyfarth.com
Ryan McCoy (SBN 276026)
3 rmccoy@seyfarth.com
560 Mission Street, 31st Floor
4 San Francisco, California 94105
Telephone: (415) 397-2823
5 Facsimile: (415) 397-8549
6 SEYFARTH SHAW LLP
Jeffrey A. Nordlander (SBN 308929)
7 jnordlander@seyfarth.com
400 Capitol Mall, Suite 2350
8 Sacramento, California 95814-4428
Telephone: (916) 448-0159
9 Facsimile: (916) 558-4839
10 Attorneys for Defendant
SAVE MART SUPERMARKETS, LLC
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12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
COUNTY OF SONOMA
14
15
DUSTIN JOHNSON, an individual, on behalf of Case No. SCV-273662
16 himself and on behalf of all persons similarly
situated, HON. CHRISTOPHER M. HONIGSBERG
17
Plaintiff, DEFENDANT SAVE MART
18 SUPERMARKETS LLC’S REPLY IN
vs. SUPPORT OF SPECIAL DEMURRER TO
19 PLAINTIFF’S COMPLAINT
20 SAVE MART SUPERMARKETS LLC, a Limited
Liability Company; and DOES 1 through 50, Date: February 7, 2024
inclusive, Time: 3:00 p.m.
21 Dept: 18
22 Defendants.
Action Filed: July 10, 2023
23
Trial Date: None Set
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
307345801v.2
1 I. INTRODUCTION
2 Plaintiff’s Opposition fails to identify grounds to deny Save Mart’s Special Demurer to stay this
3 Action pending resolution of the earlier-filed and overlapping Goodwin Action. The Goodwin Action
4 alleges the same claims, based on the same theories, on behalf of the same group of employees (current
5 and former hourly, non-exempt Save Mart employees in California), and seeks the same recovery as
6 Johnson does here. Any claim Johnson or any absent class member could assert in the present Action is
7 at-issue in the Goodwin Action and can be fully and fairly litigated there. And to the extent Johnson is
8 not content with the result ultimately achieved in the Goodwin Action, he will have the opportunity to
9 opt-out and pursue any and all claims or factual theories he believes are warranted.
10 Moreover, Save Mart already offered to stipulate to allow Johnson to proceed with his individual
11 claims notwithstanding a stay of his class claims pending resolution of the Goodwin Action. (Special
12 Demurrer at 11:22-24; Nordlander Dec., ¶ 6.) But Johnson rejected this eminently reasonable
13 compromise, indicating that the true reason for Johnson’s obstinate refusal to stipulate to a stay of this
14 action is that Plaintiff’s counsel does not want to miss out on the economic opportunity to pursue the
15 class claims.
16 Nor is coordination a proper remedy for the duplication and waste that would result from
17 Johnson being permitted to proceed with his copycat lawsuit. This Action and the Goodwin Action do
18 not satisfy the standards for coordination, and regardless there is no need for the Court to resort to
19 coordination (a cumbersome and costly process in and of itself) when it has a more effective and
20 efficient remedy in hand—staying this Action under the rule of exclusive concurrent jurisdiction.
21 Under the circumstances, there is simply no reason to allow Johnson to simultaneously litigate
22 this duplicative lawsuit pending resolution of the earlier-filed and overlapping Goodwin Action.1
23 Therefore, the Court should sustain Save Mart’s Special Demurrer.
24 ///
25 ///
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Since Save Mart filed its Special Demurrer, Plaintiff John McGehee has dismissed his Complaint as part of his agreement to
27 join the Goodwin Action and forego pursuing his claims in a separate action. (Reply Declaration of Jeffrey A. Nordlander, ¶
3.) For ease of reference, Save Mart refers to the combined claims of Goodwin and McGehee in this Reply as the “Goodwin
28 Action.”
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
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1 II. ARGUMENT
2 A. All Of The Claims And Theories Johnson Alleges In His Complaint Are Already
Being Litigated In The Goodwin Action
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Johnson’s Complaint alleges nine causes of action. (See Complaint, ¶¶ 49-122.) Johnson does
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not dispute that eight of his causes of action are expressly alleged in the Goodwin Action, along with
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several additional claims (e.g., Goodwin’s seventh cause of action for “Failure to Pay Reporting Time
6
Pay”) and theories Johnson did not include his Complaint.
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The only “difference” Johnson can identify between the claims in the two cases is that Johnson
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alleges a “Failure To Pay Sick Wages” cause of action, whereas Goodwin does not include an
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independent “Failure To Pay Sick Wages” cause of action in her Complaint. (Opposition at 1:8-11.)
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However, Goodwin alleges the precise paid sick leave claim Johnson includes in his Complaint, based
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on the exact same theory (Save Mart purportedly pays paid sick leave at the base rate of pay, rather than
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the regular rate of pay), and Goodwin seeks the same derivative penalties based on these purported
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violations as Johnson. (RJN, Ex. B, ¶¶ 45, 86, 99, 116, 117, 144 - 151.) Goodwin simply does so
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through her other causes of action—specifically, the sixth cause of action (“Failure to Timely Pay All
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Wages Due Upon Separation of Employment”), the ninth cause of action (“Unfair Competition”), and
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the tenth cause of action (“Violation of the Private Attorneys General Act of 2004”)—rather than a
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separate “Failure To Pay Sick Wages” cause of action.2 (RJN, Ex. B, ¶¶ 45, 86, 99, 116, 117, 144 - 151.)
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The below chart demonstrates that Johnson and Goodwin, in fact, allege the exact same paid sick
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leave claims:
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Johnson’s Sick Leave Claim Goodwin’s Sick Leave Claim
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22 “As a matter of policy and practice, “DEFENDANTS . . . failed to provide sick leave
DEFENDANT pays sick pay wages . . . at pay” because Defendants “fail[] to incorporate
23 the incorrect rate of pay” because multiple rates of pay and/or all forms of non-
“DEFENDANT pays sick pay wages . . . at discretionary remuneration including but not
24 the base hourly pay, as opposed to the limited to, non-discretionary bonuses, shift
regular rate of pay, which would consider differential pay, and/or other non-discretionary
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26 2
Goodwin actually has the more correct approach because California’s paid sick leave law—the Healthy Workplaces,
Healthy Families Act of 2014—does not include a private right of action. Schroeder v. Envoy Air, Inc., 2016 WL 11520388,
27 at *11 (C.D. Cal. Sept. 27, 2016) (dismissing plaintiff’s sick pay claim; “the legislature did not clearly and unmistakably
create a private right of action to enforce section 246[(i)], the Court concludes that there is none available to Plaintiffs”).
28 Therefore, the only way to recover purportedly underpaid paid sick leave benefits is through other statutes, such as
California’s Unfair Competition Law.
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
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1 all non-hourly renumeration in addition to compensation into the sick leave pay rate
base hourly wages . . . .” (Complaint, ¶ calculation.” (RJN, Ex. B, ¶ 144.)
2 119.)
3
Based on employees purportedly having Based on employees purportedly having unpaid
4 unpaid paid sick leave benefits at paid sick leave benefits at termination of
termination of employment, Save Mart is employment, Save Mart is allegedly liable for
5 allegedly liable for waiting time penalties waiting time penalties under Labor Code § 203.
under Labor Code § 203. (Complaint, ¶ (RJN, Ex. B, ¶¶ 44-48.)
6 120, 121.)
7
Based on Save Mart purportedly Based on Save Mart purportedly underpaying paid
8 underpaying paid sick leave during sick leave during employment, Save Mart is
employment, Save Mart is allegedly liable allegedly liable for penalties under Labor Code §
9 for penalties under Labor Code § 210 and 210 and Labor Code § 204. (RJN, Ex. B, ¶¶ 129,
Labor Code § 204. (Complaint, ¶ 120.) 144-51, 156.)
10
Based on Save Mart purportedly Based on Save Mart purportedly underpaying paid
11
underpaying paid sick leave, Save Mart is sick leave, Save Mart is allegedly liable for unfair
12 allegedly liable for unfair competition. competition. (RJN, Ex. B, ¶ 116.)
(Complaint, ¶ 52 (citing Labor Code § 246,
13 California’s paid sick leave statute), ¶¶
117-122.)
14
15 As for Johnson’s claim that “[t]he only reference to the miscalculation of the sick leave rate of
16 pay is in the GoodwinAction’s Tenth Cause of Action for Violation of the Private Attorneys General Act
17 of 2004 (“PAGA”), (Opposition at 1, fn. 2), this reflects a failure to closely review Goodwin’s
18 Complaint or is an intentional misrepresentation. Goodwin makes this exact allegation in paragraph 116
19 of her Complaint, in support of her class-wide unfair competition claim. (RJN, Ex. B, ¶ 116
20 (“DEFENDANTS’ unlawful conduct alleged herein constitutes unfair competition within the meaning
21 of California Business and Professions Code section 17200 et seq. This unfair conduct includes all
22 unlawful conduct alleged herein, including but not limited to . . . DEFENDANTS’ failure to provide
23 paid sick leave (or paid time off in lieu thereof) at the properly accrued rates (due to, including but not
24 limited to, DEFENDANTS’ failure to incorporate all non-discretionary compensation into the sick pay
25 calculation . . . .”).)
26 B. Johnson Seeks To Represent The Same Employees Who Are Already Included In
The Goodwin Action, Including Johnson Himself
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Johnson contends the rule of exclusive concurrent jurisdiction does not apply because this case
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
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1 and the Goodwin Action purportedly involve different parties. This is also incorrect.
2 The class in the Goodwin Action is defined as “[a]ll current and former non-exempt employees
3 that worked . . . for [Save Mart] at any location in California within the four years prior to the filing of
4 the initial Complaint.” (RJN, Ex. B, ¶ 8.) Based on Goodwin filing her Complaint on March 9, 2023, the
5 class period in the Goodwin Action is March 9, 2019 to the present. (See id.)
6 Likewise, in this action, the class is defined as all current and former non-exempt employees of
7 Save Mart “beginning four (4) years prior to the filing of this Complaint . . . .” (Comp., ¶ 4.) Based on
8 Johnson filing his Complaint on July 10, 2023, the putative class period in this action is July 10, 2019 to
9 the present. (See id.)
10 Thus, Johnson is a putative class member in the Goodwin Action, and Goodwin is a putative
11 class member in this Action. And because the class period in the Goodwin Action begins before the
12 class period in this case, and both class periods extend to the present, the group of employees included in
13 the Johnson Action are entirely encompassed by the Goodwin Action. The only difference is that the
14 first-filed Goodwin Action includes additional employees not party to this Action.
15 And as Johnson alleges class action claims the relevant inquiry is whether the class in the
16 Goodwin Action encompasses the class in this Action. See¸ e.g., Swangler v. Cherne Contracting Corp.,
17 No. 20-CV-00611-HSG, 2021 WL 6332532, at *2 (N.D. Cal. Jan. 22, 2021) (“In a class action, the
18 classes rather than the class representatives are compared.”); Adoma v. Univ. of Phoenix, Inc., 711 F.
19 Supp. 2d 1142, 1147-48 (E.D. Cal. 2010) (“In a collective action, the classes, and not the class
20 representatives, are compared.”); Weinstein v. Metlife, Inc., No. C 06–04444 SI, 2006 WL 3201045, *4
21 (N.D.Cal. Nov. 6, 2006) (“In a class action, however, it is the class, not the representative, that is
22 compared.”).
23 Finally, even if there were a material difference in the Parties between the present case and the
24 Goodwin Action, which there is not, the applicability of the rule of exclusive concurrent jurisdiction is
25 very broad. It does not require “absolute identity of parties . . . in the initial and subsequent actions.”
26 People ex rel. Garamendi v. Am. Autoplan, Inc., 20 Cal. App. 4th 760, 770 (1993). Instead, it merely
27 requires the court exercising original jurisdiction to have “the power to bring before it all the necessary
28 parties.” Id. As the Goodwin court has the power to enter a judgment and grant each and every putative
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
307345801v.2
1 class member in the present Action complete relief, this standard is indisputably met. The fact that “the
2 parties in the second action are [allegedly] not identical does not preclude application of the rule.” Id.;
3 see also Plant Insulation Co. v. Fibreboard Corp., 224 Cal. App. 3d 781, 788 (1990) (the doctrine does
4 not require “absolute identity of parties”).
5 C. The Court Should Stay This Action Pending Resolution Of Goodwin, Not
Coordinate It
6
By proposing that the Court coordinate this Action with the Goodwin Action, Johnson effectively
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concedes that the simultaneous and uncontrolled litigation of this Action and the Goodwin Action would
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“would duplicate court efforts, waste resources, and potentially produce divergent results.” Shaw v. The
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Superior Court, 78 Cal. App. 5th 245, 251 (2022). But coordination is not the proper remedy for the
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duplication, waste, and potentially divergent outcomes that would result from the simultaneous litigation
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of this case and the Goodwin Action for several reasons.
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“Coordination” refers to the process of bringing together cases pending in different counties that
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share a common question of fact or law before one judge for case management. See Cal. Rules of Court,
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rule 3.501-3.550; Code Civ. Proc., § 404-404.9. Coordination is an involved and time-consuming
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process, with at least four steps (1) a “petition for coordination” is submitted to the Chairperson of the
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Judicial Council, (Cal. Rules of Court, rule 3.501(14)), (2) the Chairperson of the Judicial Council
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assigns a “coordination motion judge” to rule on the coordination petition, (Cal. Rules of Court, rule
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3.501(7)), (3) the “coordination motion judge” rules on the petition, and (4) if the petition is granted, a
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“coordination trial judge” is assigned to manage the cases through trial or, at some later time, return
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them to the court of origin, (Cal. Rules of Court, rule 3.501(9)).
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Here, there is no good reason to subject Save Mart, Goodwin, McGehee, Johnson, the San
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Joaquin Superior Court, or this Court to the burden and expense of coordination when the Court has a
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more efficient and effective remedy already in hand—staying this case under the rule of exclusive
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concurrent jurisdiction. All of the claims Johnson alleges in his Complaint are at-issue in the Goodwin
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Action, and can be fully and fairly litigated there. No party will be prejudiced by a stay—if Johnson, or
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any other class member, is dissatisfied with the result achieved in the Goodwin Action, they can simply
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opt out and pursue their claims on an individual basis. And as discussed in Section II(E) below, Save
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
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1 Mart already offered to stipulate to Johnson proceeding with his individual claims notwithstanding the
2 pendency of the Goodwin Action. Coordinating, rather than staying this Action, adds nothing to the
3 equation except additional layers of complexity and cost.
4 In addition, the Johnson and Goodwin Actions—wage-and-hour class actions—are not the sort
5 of case that are typically coordinated or which would substantially benefit from coordination.
6 Coordination is generally utilized where very large numbers of non-class cases involving a common
7 issue of law or fact (e.g., mass tort actions concerning an allegedly defective product) are filed in
8 different courts. See, e.g., McGhan Med. Corp. v. Sup.Ct. (Hogan), 11 Cal. App. 4th 804, 812 (1992)
9 (ordering coordination of 600 product defect cases pending in 20 different counties); Ford Motor
10 Warranty Cases v. Sup.Ct. (Aguilar), 11 Cal. App. 5th 626, 641-646 (2017) (finding coordination of
11 almost 1,000 “lemon law” cases involving the same vehicle warranted). Coordination allows whatever
12 common question of law or fact affects the coordinated cases (e.g., is the product defective) to be
13 decided once, rather than hundreds of times in separate trials. But this Action and the Goodwin Action
14 are overlapping class actions where the Goodwin court is already empowered to adjudicate any and all
15 common questions of law and fact involving Johnson and any of the employees he seeks to represent.
16 In short, coordination is a cumbersome and costly process that is unwarranted based on the facts
17 of this case, especially considering that the Court already has a more suitable remedy already
18 available—staying this action under the rule of exclusive concurrent jurisdiction.
19 D. Johnson Fails To Identify Relevant Case Law Supporting His Refusal To Stipulate
To A Stay Of This Action
20
21 Johnson points to several different cases in his Opposition, but none support the position he takes
22 in this matter.
23 First, Johnson contends that the decision in Gregg v. Superior Court, 194 Cal. App. 3d 134
24 (1987) “is controlling here,” (Opposition at 2:17-18), but it is unclear how that could possibly be the
25 case given that the Gregg decision does not even reference the doctrine of exclusive concurrent
26 jurisdiction. Instead, Gregg considered whether principles of comity between state and federal courts
27 required a stay of the plaintiff’s state-court claims pending resolution of a separate federal court action.
28 Id. at 136-137.
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
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1 The decision in Gregg is also factually inapposite because Gregg did not involve a class action
2 where a judgment in the first-filed action would resolve the claims of the plaintiff in the second-filed
3 lawsuit. Gregg, 194 Cal. App. at 136-137. The Gregg plaintiff had no connection to the first-filed
4 federal court action, and there was no reason to stay his claims because resolution of the federal court
5 ligitation would not impact his right to proceed with his lawsuit no matter its result. Id. Here, by contrast,
6 Johnson is a putative class member in the Goodwin Action and a certified judgment in Goodwin will be
7 res judicata to Johnson’s claims in this Action. Moreover, because Johnson is a class member in the
8 Goodwin Action, unlike in Gregg, the parties in this Action and the Goodwin Action are, in fact, “the
9 same or substantially identical.” Gregg, 194 Cal. App. at 137.
10 Johnson also heavily relies on Farmland Irr. Co. v. Dopplmaier, 48 Cal. 2d 208, 213 (1957), a
11 case decided more than 65 years ago in which the plaintiff sought “a declaratory judgment that it is
12 entitled to manufacture and sell irrigation equipment under a patent license agreement and a declaration
13 of its duties under the royalty provisions of the license agreement.” Id. at 213. Just like Gregg,
14 Farmland does not even reference the rule of exclusive concurrent jurisdiction, and is otherwise
15 factually inapposite to Save Mart’s Special Demurrer.
16 In Farmland, the California Supreme Court affirmed the trial court’s denial of the defendant’s
17 motion to stay pending resolution of separate litigation pending in Oregon. Farmland, 48 Cal. App. 2d at
18 213-214. Farmland is of no help to Johnson. First, the defendant’s motion to stay was denied, in part,
19 because the defendant had successfully opposed the plaintiff’s motion to intervene in the Oregon case.
20 Farmland, 38 Cal. 2d at 215 (“Plaintiff is not a party to the Oregon action; it attempted to intervene as a
21 party defendant, but was successfully prevented from doing so by defendant.”). The defendant could
22 hardly complain about duplicative litigation when it obstructed the plaintiff’s attempt to intervene in the
23 Oregon case.3
24 Further, not only was the Farmland plaintiff not a party to the Oregon litigation, but the two
25 cases involved different claims. Id. at 216 (“Although the complaint in the Oregon action calls for an
26 adjudication of the licensee's obligations under the royalty provisions, the issue raised by plaintiff's
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3
28 Save Mart has taken no similar action to obstruct Johnson from joining the Goodwin Action; in fact, Save Mart previously
stipulated with the plaintiff in McGehee for him to join the Goodwin Action. (Nordlander Decl., ¶ 3.)
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
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1 second cause of action in the present case, it does not call for an adjudication of the assignability of the
2 license and plaintiff's rights thereunder, the issues raised by plaintiff's first cause of action . . . A stay of
3 the present proceedings would therefore not only bring these issues no closer to determination, but
4 would compel plaintiff to await a judgment that cannot respond to its need.”). Here, the Goodwin Action
5 includes each and every claim (and then some) that Johnson alleges in his Complaint.
6 Johnson also points to Bridgeford v. Pac. Health Corp., 202 Cal. App. 4th 1034 (2012), where
7 the Court considered whether the denial of class certification in a prior class action collaterally estopped
8 and the required the dismissal of the plaintiff’s class claims in a later-filed action. Id. at 1034-35.
9 Bridgeford is irrelevant to Save Mart’s Special Demurrer. Just like Gregg and Farmland, Bridgeforrd
10 does not even mention the rule of exclusive concurrent jurisdiction, and Save Mart is neither arguing
11 that Goodwin’s uncertified class claims collaterally estop Johnson’s claims nor seeking the dismissal of
12 Johnson’s claims based on the pendency of the Goodwin Action.
13 Finally, Johnson argues Shaw v. Superior Court, 78 Cal. App. 5th 245 (2022) does not support
14 Save Mart’s Special Demurrer because Shaw involved a PAGA claim. (Opposition at 5:8-26.) What
15 Johnson neglects to mention is that he submitted a PAGA Notice to the Labor and Workforce
16 Development Agency on May 23, 2023 stating that he intends to file a PAGA lawsuit against Save Mart.
17 (Supplemental Request for Judicial Notice, Ex. D.) Presumably Johnson filed this notice for a reason,
18 and he intends to amend his Complaint in the present action to assert a PAGA claim in the event the
19 Court does not grant Save Mart’s Special Demurrer. Shaw, which confirms that duplicative PAGA
20 lawsuits are properly stayed under the rule of exclusive concurrent jurisdiction, just like any other
21 lawsuit, is directly on point and demonstrates that Save Mart is entitled to a stay of Johnson’s claims.
22 E. Johnson Will Not Be Prejudiced By A Stay Of His Claims Pending Resolution Of
The Goodwin Action
23
24 Johnson claims that “justice delayed is justice denied,” this action is the “only venue wherein
25 Plaintiff may obtain relief her [sic] claims,” and that a stay will “cause her [sic] irreparable prejudice.”
26 (Opp. at 7:15-25.) However, Johnson will not be prejudiced by a stay in any respect.
27 First, a stay will allow Johnson the opportunity to sit back, await resolution of the Goodwin
28 Action, and participate in any settlement of the Goodwin Action without having to incur the burden and
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
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1 expense of litigation against Save Mart. And to the extent Johnson or any absent class member is not
2 content with the result ultimately achieved in Goodwin, he will have the opportunity to opt-out and
3 pursue any and all claims or factual theories he believes are warranted. This scenario does not prejudice
4 Johnson; it benefits him.
5 Second, Save Mart already offered to allow Johnson to proceed with his individual claims
6 notwithstanding a stay of his class action claims during the pendency of the Goodwin Action. (Motion
7 at 11:22-24; Nordlander Dec., ¶ 6.) Johnson rejected this extremely reasonable compromise, which
8 Save Mart was not even required to extend because a stay of Johnson’s class and individual claims is
9 mandatory under the rule of exclusive concurrent jurisdiction.
10 And Johnson fails to explain how he will experience cognizable prejudice as a result of the Court
11 staying the claims of other Save Mart employees—who themselves will not prejudiced by a stay because
12 their claims are already being fully and fairly litigated in the Goodwin Action—likely because he cannot
13 do so. Moreover, Johnson rejecting Save Mart’s offer to allow him to proceed with his individual claims
14 pending resolution of the Goodwin Action sugggests that the true reason for Johnson’s opposition to a
15 stay is that Plaintiff’s counsel does not wish to lose out on the economic opportunity to pursue the class
16 action claims.
17 In short, Johnson will not be prejudiced in any respect by a stay, while Save Mart will be
18 severely and irreparably prejudiced by being compelled to defend identical claims in different forums
19 for no valid reason.
20 F. The Court Can Also Stay This Action Pending Resolution Of The Goodwin Action
Under Its Inherent Authority To Control Proceedings Before It
21
22 Finally, in addition to staying this action under the rule of exclusive concurrent jurisdiction, the
23 Court can also exercise its inherent authority to order a discretionary stay of this action. As described in
24 Save Mart’s Special Demurrer and this Reply, a stay will promote judicial economy by saving the time,
25 money, and resources of this Court, counsel, and the parties. It will also avoid the potential of this Court
26 issuing a ruling that is either duplicative of or inconsistent with a prior ruling in the first-filed Goodwin
27 Action.
28 A stay protects against the “real possibility of unseemly conflict between courts that might arise
9
DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
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1 if they were free to make contradictory decisions or awards at the same time or relating to the same
2 controversy,” and it serves “to protect litigants from the expense and harassment of multiple litigation.”
3 Franklin & Franklin v. 7-Eleven Owners for Fair Franchising, 85 Cal.App.4th 1168, 1176 (2000).
4 Therefore, the Court should also stay this Action under its inherent authority to control proceedings
5 before it.
6 III. CONCLUSION
7 For the foregoing reasons, Save Mart respectfully requests that the Court sustain its Special
8 Demurrer, and issue an order staying this action in its entirety, pending resolution of the Goodwin
9 Action.
10
11 DATED: January 12, 2024
Respectfully submitted,
12
SEYFARTH SHAW LLP
13
14
By:
15 Kerry M. Friedrichs
Ryan McCoy
16 Jeffrey A. Nordlander
Attorneys for Defendant
17 SAVE MART SUPERMARKETS LLC,
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DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
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1 PROOF OF SERVICE
2 I am a resident of the State of California, over the age of eighteen years, and not a party to the
within action. My business address is 400 Capitol Mall, Suite 2300, Sacramento, California 95814-
3 4428. On January 12, 2024, I had served the within document(s):
4 DEFENDANT SAVE MART SUPERMARKETS LLC’S REPLY IN SUPPORT OF SPECIAL
DEMURRER TO PLAINTIFF’S COMPLAINT
5
SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT
6 SAVE MART SUPERMARKETS LLC’S REPLY IN SUPPORT OF ITS SPECIAL DEMURRER
TO PLAINTIFF’S COMPLAINT
7
SUPPLEMENTAL DECLARATION OF JEFFREY A. NORDLANDER IN SUPPORT OF
8 DEFENDANT SAVE MART SUPERMARKETS LLC’S REPLY IN SUPPORT OF ITS
SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT
9
by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid,
10
in the United States mail at Sacramento, California, addressed as set forth below.
11 by placing the document(s) listed above, together with an unsigned copy of this declaration, in a
sealed envelope or package provided by an overnight delivery carrier with postage paid on
12 account and deposited for collection with the overnight carrier at Sacramento, California,
addressed as set forth below.
13
by transmitting the document(s) listed above, electronically, via the e-mail addresses set forth
14
below.
15
BLUMENTHAL NORDEHAUG BHOWMIK Attorneys for Plaintiff
16 DE BLOUW LLP DUSTIN JOHNSON
Norman B. Blumenthal
17 Kyle R. Nordrehaug Norm@bamlawca.com;
Aparajit Bhowmik kyle@bamlawca.com;
18 Nicholas J. De Blouw AJ@bamlawca.com; nick@bamlawca.com;
Piya Mukherjee piya@bamlawca.com;
19 2255 Calle Clara charlotte@bamlawca.com;
La Jolla, CA 92037 Gerardo@bamlawca.com
20
Telephone: (858) 551-1223
21 Facsimile: (858) 551-1232
22 I am readily familiar with the firm’s practice of collection and processing correspondence for
mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with
23 postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party
served, service is presumed invalid if postal cancellation date or postage meter date is more than one day
24 after date of deposit for mailing in affidavit.
25 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on January 12, 2024, at Sacramento, California.
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Laura Bovee
PROOF OF SERVICE
305918135v.1
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1 SEYFARTH SHAW LLP Kerry M. Friedrichs (SBN 198143) 2 kfriedrichs@seyfarth.com Ryan McCoy (SBN 276026) 3 rmccoy@seyfarth.com 560 Mission Street, 31st Floor 4 San Francisco, California 94105 Telephone: (415) 397-2823 5 Facsimile: (415) 397-8549 6 SEYFARTH SHAW LLP Jeffrey A. Nordlander (SBN 308929) 7 jnordlander@seyfarth.com 400 Capitol Mall, Suite 2350 8 Sacramento, California 95814-4428 Telephone: (916) 448-0159 9 Facsimile: (916) 558-4839 10 Attorneys for Defendant SAVE MART SUPERMARKETS, LLC 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SONOMA 14 15 DUSTIN JOHNSON, an individual, on behalf of Case No. SCV-273662 16 himself and on behalf of all persons similarly situated, HON. CHRISTOPHER M. HONIGSBERG 17 Plaintiff, DEFENDANT SAVE MART 18 SUPERMARKETS LLC’S REPLY IN vs. SUPPORT OF SPECIAL DEMURRER TO 19 PLAINTIFF’S COMPLAINT 20 SAVE MART SUPERMARKETS LLC, a Limited Liability Company; and DOES 1 through 50, Date: February 7, 2024 inclusive, Time: 3:00 p.m. 21 Dept: 18 22 Defendants. Action Filed: July 10, 2023 23 Trial Date: None Set 24 25 26 27 28 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 I. INTRODUCTION 2 Plaintiff’s Opposition fails to identify grounds to deny Save Mart’s Special Demurer to stay this 3 Action pending resolution of the earlier-filed and overlapping Goodwin Action. The Goodwin Action 4 alleges the same claims, based on the same theories, on behalf of the same group of employees (current 5 and former hourly, non-exempt Save Mart employees in California), and seeks the same recovery as 6 Johnson does here. Any claim Johnson or any absent class member could assert in the present Action is 7 at-issue in the Goodwin Action and can be fully and fairly litigated there. And to the extent Johnson is 8 not content with the result ultimately achieved in the Goodwin Action, he will have the opportunity to 9 opt-out and pursue any and all claims or factual theories he believes are warranted. 10 Moreover, Save Mart already offered to stipulate to allow Johnson to proceed with his individual 11 claims notwithstanding a stay of his class claims pending resolution of the Goodwin Action. (Special 12 Demurrer at 11:22-24; Nordlander Dec., ¶ 6.) But Johnson rejected this eminently reasonable 13 compromise, indicating that the true reason for Johnson’s obstinate refusal to stipulate to a stay of this 14 action is that Plaintiff’s counsel does not want to miss out on the economic opportunity to pursue the 15 class claims. 16 Nor is coordination a proper remedy for the duplication and waste that would result from 17 Johnson being permitted to proceed with his copycat lawsuit. This Action and the Goodwin Action do 18 not satisfy the standards for coordination, and regardless there is no need for the Court to resort to 19 coordination (a cumbersome and costly process in and of itself) when it has a more effective and 20 efficient remedy in hand—staying this Action under the rule of exclusive concurrent jurisdiction. 21 Under the circumstances, there is simply no reason to allow Johnson to simultaneously litigate 22 this duplicative lawsuit pending resolution of the earlier-filed and overlapping Goodwin Action.1 23 Therefore, the Court should sustain Save Mart’s Special Demurrer. 24 /// 25 /// 26 1 Since Save Mart filed its Special Demurrer, Plaintiff John McGehee has dismissed his Complaint as part of his agreement to 27 join the Goodwin Action and forego pursuing his claims in a separate action. (Reply Declaration of Jeffrey A. Nordlander, ¶ 3.) For ease of reference, Save Mart refers to the combined claims of Goodwin and McGehee in this Reply as the “Goodwin 28 Action.” 1 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 II. ARGUMENT 2 A. All Of The Claims And Theories Johnson Alleges In His Complaint Are Already Being Litigated In The Goodwin Action 3 Johnson’s Complaint alleges nine causes of action. (See Complaint, ¶¶ 49-122.) Johnson does 4 not dispute that eight of his causes of action are expressly alleged in the Goodwin Action, along with 5 several additional claims (e.g., Goodwin’s seventh cause of action for “Failure to Pay Reporting Time 6 Pay”) and theories Johnson did not include his Complaint. 7 The only “difference” Johnson can identify between the claims in the two cases is that Johnson 8 alleges a “Failure To Pay Sick Wages” cause of action, whereas Goodwin does not include an 9 independent “Failure To Pay Sick Wages” cause of action in her Complaint. (Opposition at 1:8-11.) 10 However, Goodwin alleges the precise paid sick leave claim Johnson includes in his Complaint, based 11 on the exact same theory (Save Mart purportedly pays paid sick leave at the base rate of pay, rather than 12 the regular rate of pay), and Goodwin seeks the same derivative penalties based on these purported 13 violations as Johnson. (RJN, Ex. B, ¶¶ 45, 86, 99, 116, 117, 144 - 151.) Goodwin simply does so 14 through her other causes of action—specifically, the sixth cause of action (“Failure to Timely Pay All 15 Wages Due Upon Separation of Employment”), the ninth cause of action (“Unfair Competition”), and 16 the tenth cause of action (“Violation of the Private Attorneys General Act of 2004”)—rather than a 17 separate “Failure To Pay Sick Wages” cause of action.2 (RJN, Ex. B, ¶¶ 45, 86, 99, 116, 117, 144 - 151.) 18 The below chart demonstrates that Johnson and Goodwin, in fact, allege the exact same paid sick 19 leave claims: 20 Johnson’s Sick Leave Claim Goodwin’s Sick Leave Claim 21 22 “As a matter of policy and practice, “DEFENDANTS . . . failed to provide sick leave DEFENDANT pays sick pay wages . . . at pay” because Defendants “fail[] to incorporate 23 the incorrect rate of pay” because multiple rates of pay and/or all forms of non- “DEFENDANT pays sick pay wages . . . at discretionary remuneration including but not 24 the base hourly pay, as opposed to the limited to, non-discretionary bonuses, shift regular rate of pay, which would consider differential pay, and/or other non-discretionary 25 26 2 Goodwin actually has the more correct approach because California’s paid sick leave law—the Healthy Workplaces, Healthy Families Act of 2014—does not include a private right of action. Schroeder v. Envoy Air, Inc., 2016 WL 11520388, 27 at *11 (C.D. Cal. Sept. 27, 2016) (dismissing plaintiff’s sick pay claim; “the legislature did not clearly and unmistakably create a private right of action to enforce section 246[(i)], the Court concludes that there is none available to Plaintiffs”). 28 Therefore, the only way to recover purportedly underpaid paid sick leave benefits is through other statutes, such as California’s Unfair Competition Law. 2 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 all non-hourly renumeration in addition to compensation into the sick leave pay rate base hourly wages . . . .” (Complaint, ¶ calculation.” (RJN, Ex. B, ¶ 144.) 2 119.) 3 Based on employees purportedly having Based on employees purportedly having unpaid 4 unpaid paid sick leave benefits at paid sick leave benefits at termination of termination of employment, Save Mart is employment, Save Mart is allegedly liable for 5 allegedly liable for waiting time penalties waiting time penalties under Labor Code § 203. under Labor Code § 203. (Complaint, ¶ (RJN, Ex. B, ¶¶ 44-48.) 6 120, 121.) 7 Based on Save Mart purportedly Based on Save Mart purportedly underpaying paid 8 underpaying paid sick leave during sick leave during employment, Save Mart is employment, Save Mart is allegedly liable allegedly liable for penalties under Labor Code § 9 for penalties under Labor Code § 210 and 210 and Labor Code § 204. (RJN, Ex. B, ¶¶ 129, Labor Code § 204. (Complaint, ¶ 120.) 144-51, 156.) 10 Based on Save Mart purportedly Based on Save Mart purportedly underpaying paid 11 underpaying paid sick leave, Save Mart is sick leave, Save Mart is allegedly liable for unfair 12 allegedly liable for unfair competition. competition. (RJN, Ex. B, ¶ 116.) (Complaint, ¶ 52 (citing Labor Code § 246, 13 California’s paid sick leave statute), ¶¶ 117-122.) 14 15 As for Johnson’s claim that “[t]he only reference to the miscalculation of the sick leave rate of 16 pay is in the GoodwinAction’s Tenth Cause of Action for Violation of the Private Attorneys General Act 17 of 2004 (“PAGA”), (Opposition at 1, fn. 2), this reflects a failure to closely review Goodwin’s 18 Complaint or is an intentional misrepresentation. Goodwin makes this exact allegation in paragraph 116 19 of her Complaint, in support of her class-wide unfair competition claim. (RJN, Ex. B, ¶ 116 20 (“DEFENDANTS’ unlawful conduct alleged herein constitutes unfair competition within the meaning 21 of California Business and Professions Code section 17200 et seq. This unfair conduct includes all 22 unlawful conduct alleged herein, including but not limited to . . . DEFENDANTS’ failure to provide 23 paid sick leave (or paid time off in lieu thereof) at the properly accrued rates (due to, including but not 24 limited to, DEFENDANTS’ failure to incorporate all non-discretionary compensation into the sick pay 25 calculation . . . .”).) 26 B. Johnson Seeks To Represent The Same Employees Who Are Already Included In The Goodwin Action, Including Johnson Himself 27 Johnson contends the rule of exclusive concurrent jurisdiction does not apply because this case 28 3 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 and the Goodwin Action purportedly involve different parties. This is also incorrect. 2 The class in the Goodwin Action is defined as “[a]ll current and former non-exempt employees 3 that worked . . . for [Save Mart] at any location in California within the four years prior to the filing of 4 the initial Complaint.” (RJN, Ex. B, ¶ 8.) Based on Goodwin filing her Complaint on March 9, 2023, the 5 class period in the Goodwin Action is March 9, 2019 to the present. (See id.) 6 Likewise, in this action, the class is defined as all current and former non-exempt employees of 7 Save Mart “beginning four (4) years prior to the filing of this Complaint . . . .” (Comp., ¶ 4.) Based on 8 Johnson filing his Complaint on July 10, 2023, the putative class period in this action is July 10, 2019 to 9 the present. (See id.) 10 Thus, Johnson is a putative class member in the Goodwin Action, and Goodwin is a putative 11 class member in this Action. And because the class period in the Goodwin Action begins before the 12 class period in this case, and both class periods extend to the present, the group of employees included in 13 the Johnson Action are entirely encompassed by the Goodwin Action. The only difference is that the 14 first-filed Goodwin Action includes additional employees not party to this Action. 15 And as Johnson alleges class action claims the relevant inquiry is whether the class in the 16 Goodwin Action encompasses the class in this Action. See¸ e.g., Swangler v. Cherne Contracting Corp., 17 No. 20-CV-00611-HSG, 2021 WL 6332532, at *2 (N.D. Cal. Jan. 22, 2021) (“In a class action, the 18 classes rather than the class representatives are compared.”); Adoma v. Univ. of Phoenix, Inc., 711 F. 19 Supp. 2d 1142, 1147-48 (E.D. Cal. 2010) (“In a collective action, the classes, and not the class 20 representatives, are compared.”); Weinstein v. Metlife, Inc., No. C 06–04444 SI, 2006 WL 3201045, *4 21 (N.D.Cal. Nov. 6, 2006) (“In a class action, however, it is the class, not the representative, that is 22 compared.”). 23 Finally, even if there were a material difference in the Parties between the present case and the 24 Goodwin Action, which there is not, the applicability of the rule of exclusive concurrent jurisdiction is 25 very broad. It does not require “absolute identity of parties . . . in the initial and subsequent actions.” 26 People ex rel. Garamendi v. Am. Autoplan, Inc., 20 Cal. App. 4th 760, 770 (1993). Instead, it merely 27 requires the court exercising original jurisdiction to have “the power to bring before it all the necessary 28 parties.” Id. As the Goodwin court has the power to enter a judgment and grant each and every putative 4 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 class member in the present Action complete relief, this standard is indisputably met. The fact that “the 2 parties in the second action are [allegedly] not identical does not preclude application of the rule.” Id.; 3 see also Plant Insulation Co. v. Fibreboard Corp., 224 Cal. App. 3d 781, 788 (1990) (the doctrine does 4 not require “absolute identity of parties”). 5 C. The Court Should Stay This Action Pending Resolution Of Goodwin, Not Coordinate It 6 By proposing that the Court coordinate this Action with the Goodwin Action, Johnson effectively 7 concedes that the simultaneous and uncontrolled litigation of this Action and the Goodwin Action would 8 “would duplicate court efforts, waste resources, and potentially produce divergent results.” Shaw v. The 9 Superior Court, 78 Cal. App. 5th 245, 251 (2022). But coordination is not the proper remedy for the 10 duplication, waste, and potentially divergent outcomes that would result from the simultaneous litigation 11 of this case and the Goodwin Action for several reasons. 12 “Coordination” refers to the process of bringing together cases pending in different counties that 13 share a common question of fact or law before one judge for case management. See Cal. Rules of Court, 14 rule 3.501-3.550; Code Civ. Proc., § 404-404.9. Coordination is an involved and time-consuming 15 process, with at least four steps (1) a “petition for coordination” is submitted to the Chairperson of the 16 Judicial Council, (Cal. Rules of Court, rule 3.501(14)), (2) the Chairperson of the Judicial Council 17 assigns a “coordination motion judge” to rule on the coordination petition, (Cal. Rules of Court, rule 18 3.501(7)), (3) the “coordination motion judge” rules on the petition, and (4) if the petition is granted, a 19 “coordination trial judge” is assigned to manage the cases through trial or, at some later time, return 20 them to the court of origin, (Cal. Rules of Court, rule 3.501(9)). 21 Here, there is no good reason to subject Save Mart, Goodwin, McGehee, Johnson, the San 22 Joaquin Superior Court, or this Court to the burden and expense of coordination when the Court has a 23 more efficient and effective remedy already in hand—staying this case under the rule of exclusive 24 concurrent jurisdiction. All of the claims Johnson alleges in his Complaint are at-issue in the Goodwin 25 Action, and can be fully and fairly litigated there. No party will be prejudiced by a stay—if Johnson, or 26 any other class member, is dissatisfied with the result achieved in the Goodwin Action, they can simply 27 opt out and pursue their claims on an individual basis. And as discussed in Section II(E) below, Save 28 5 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 Mart already offered to stipulate to Johnson proceeding with his individual claims notwithstanding the 2 pendency of the Goodwin Action. Coordinating, rather than staying this Action, adds nothing to the 3 equation except additional layers of complexity and cost. 4 In addition, the Johnson and Goodwin Actions—wage-and-hour class actions—are not the sort 5 of case that are typically coordinated or which would substantially benefit from coordination. 6 Coordination is generally utilized where very large numbers of non-class cases involving a common 7 issue of law or fact (e.g., mass tort actions concerning an allegedly defective product) are filed in 8 different courts. See, e.g., McGhan Med. Corp. v. Sup.Ct. (Hogan), 11 Cal. App. 4th 804, 812 (1992) 9 (ordering coordination of 600 product defect cases pending in 20 different counties); Ford Motor 10 Warranty Cases v. Sup.Ct. (Aguilar), 11 Cal. App. 5th 626, 641-646 (2017) (finding coordination of 11 almost 1,000 “lemon law” cases involving the same vehicle warranted). Coordination allows whatever 12 common question of law or fact affects the coordinated cases (e.g., is the product defective) to be 13 decided once, rather than hundreds of times in separate trials. But this Action and the Goodwin Action 14 are overlapping class actions where the Goodwin court is already empowered to adjudicate any and all 15 common questions of law and fact involving Johnson and any of the employees he seeks to represent. 16 In short, coordination is a cumbersome and costly process that is unwarranted based on the facts 17 of this case, especially considering that the Court already has a more suitable remedy already 18 available—staying this action under the rule of exclusive concurrent jurisdiction. 19 D. Johnson Fails To Identify Relevant Case Law Supporting His Refusal To Stipulate To A Stay Of This Action 20 21 Johnson points to several different cases in his Opposition, but none support the position he takes 22 in this matter. 23 First, Johnson contends that the decision in Gregg v. Superior Court, 194 Cal. App. 3d 134 24 (1987) “is controlling here,” (Opposition at 2:17-18), but it is unclear how that could possibly be the 25 case given that the Gregg decision does not even reference the doctrine of exclusive concurrent 26 jurisdiction. Instead, Gregg considered whether principles of comity between state and federal courts 27 required a stay of the plaintiff’s state-court claims pending resolution of a separate federal court action. 28 Id. at 136-137. 6 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 The decision in Gregg is also factually inapposite because Gregg did not involve a class action 2 where a judgment in the first-filed action would resolve the claims of the plaintiff in the second-filed 3 lawsuit. Gregg, 194 Cal. App. at 136-137. The Gregg plaintiff had no connection to the first-filed 4 federal court action, and there was no reason to stay his claims because resolution of the federal court 5 ligitation would not impact his right to proceed with his lawsuit no matter its result. Id. Here, by contrast, 6 Johnson is a putative class member in the Goodwin Action and a certified judgment in Goodwin will be 7 res judicata to Johnson’s claims in this Action. Moreover, because Johnson is a class member in the 8 Goodwin Action, unlike in Gregg, the parties in this Action and the Goodwin Action are, in fact, “the 9 same or substantially identical.” Gregg, 194 Cal. App. at 137. 10 Johnson also heavily relies on Farmland Irr. Co. v. Dopplmaier, 48 Cal. 2d 208, 213 (1957), a 11 case decided more than 65 years ago in which the plaintiff sought “a declaratory judgment that it is 12 entitled to manufacture and sell irrigation equipment under a patent license agreement and a declaration 13 of its duties under the royalty provisions of the license agreement.” Id. at 213. Just like Gregg, 14 Farmland does not even reference the rule of exclusive concurrent jurisdiction, and is otherwise 15 factually inapposite to Save Mart’s Special Demurrer. 16 In Farmland, the California Supreme Court affirmed the trial court’s denial of the defendant’s 17 motion to stay pending resolution of separate litigation pending in Oregon. Farmland, 48 Cal. App. 2d at 18 213-214. Farmland is of no help to Johnson. First, the defendant’s motion to stay was denied, in part, 19 because the defendant had successfully opposed the plaintiff’s motion to intervene in the Oregon case. 20 Farmland, 38 Cal. 2d at 215 (“Plaintiff is not a party to the Oregon action; it attempted to intervene as a 21 party defendant, but was successfully prevented from doing so by defendant.”). The defendant could 22 hardly complain about duplicative litigation when it obstructed the plaintiff’s attempt to intervene in the 23 Oregon case.3 24 Further, not only was the Farmland plaintiff not a party to the Oregon litigation, but the two 25 cases involved different claims. Id. at 216 (“Although the complaint in the Oregon action calls for an 26 adjudication of the licensee's obligations under the royalty provisions, the issue raised by plaintiff's 27 3 28 Save Mart has taken no similar action to obstruct Johnson from joining the Goodwin Action; in fact, Save Mart previously stipulated with the plaintiff in McGehee for him to join the Goodwin Action. (Nordlander Decl., ¶ 3.) 7 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 second cause of action in the present case, it does not call for an adjudication of the assignability of the 2 license and plaintiff's rights thereunder, the issues raised by plaintiff's first cause of action . . . A stay of 3 the present proceedings would therefore not only bring these issues no closer to determination, but 4 would compel plaintiff to await a judgment that cannot respond to its need.”). Here, the Goodwin Action 5 includes each and every claim (and then some) that Johnson alleges in his Complaint. 6 Johnson also points to Bridgeford v. Pac. Health Corp., 202 Cal. App. 4th 1034 (2012), where 7 the Court considered whether the denial of class certification in a prior class action collaterally estopped 8 and the required the dismissal of the plaintiff’s class claims in a later-filed action. Id. at 1034-35. 9 Bridgeford is irrelevant to Save Mart’s Special Demurrer. Just like Gregg and Farmland, Bridgeforrd 10 does not even mention the rule of exclusive concurrent jurisdiction, and Save Mart is neither arguing 11 that Goodwin’s uncertified class claims collaterally estop Johnson’s claims nor seeking the dismissal of 12 Johnson’s claims based on the pendency of the Goodwin Action. 13 Finally, Johnson argues Shaw v. Superior Court, 78 Cal. App. 5th 245 (2022) does not support 14 Save Mart’s Special Demurrer because Shaw involved a PAGA claim. (Opposition at 5:8-26.) What 15 Johnson neglects to mention is that he submitted a PAGA Notice to the Labor and Workforce 16 Development Agency on May 23, 2023 stating that he intends to file a PAGA lawsuit against Save Mart. 17 (Supplemental Request for Judicial Notice, Ex. D.) Presumably Johnson filed this notice for a reason, 18 and he intends to amend his Complaint in the present action to assert a PAGA claim in the event the 19 Court does not grant Save Mart’s Special Demurrer. Shaw, which confirms that duplicative PAGA 20 lawsuits are properly stayed under the rule of exclusive concurrent jurisdiction, just like any other 21 lawsuit, is directly on point and demonstrates that Save Mart is entitled to a stay of Johnson’s claims. 22 E. Johnson Will Not Be Prejudiced By A Stay Of His Claims Pending Resolution Of The Goodwin Action 23 24 Johnson claims that “justice delayed is justice denied,” this action is the “only venue wherein 25 Plaintiff may obtain relief her [sic] claims,” and that a stay will “cause her [sic] irreparable prejudice.” 26 (Opp. at 7:15-25.) However, Johnson will not be prejudiced by a stay in any respect. 27 First, a stay will allow Johnson the opportunity to sit back, await resolution of the Goodwin 28 Action, and participate in any settlement of the Goodwin Action without having to incur the burden and 8 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 expense of litigation against Save Mart. And to the extent Johnson or any absent class member is not 2 content with the result ultimately achieved in Goodwin, he will have the opportunity to opt-out and 3 pursue any and all claims or factual theories he believes are warranted. This scenario does not prejudice 4 Johnson; it benefits him. 5 Second, Save Mart already offered to allow Johnson to proceed with his individual claims 6 notwithstanding a stay of his class action claims during the pendency of the Goodwin Action. (Motion 7 at 11:22-24; Nordlander Dec., ¶ 6.) Johnson rejected this extremely reasonable compromise, which 8 Save Mart was not even required to extend because a stay of Johnson’s class and individual claims is 9 mandatory under the rule of exclusive concurrent jurisdiction. 10 And Johnson fails to explain how he will experience cognizable prejudice as a result of the Court 11 staying the claims of other Save Mart employees—who themselves will not prejudiced by a stay because 12 their claims are already being fully and fairly litigated in the Goodwin Action—likely because he cannot 13 do so. Moreover, Johnson rejecting Save Mart’s offer to allow him to proceed with his individual claims 14 pending resolution of the Goodwin Action sugggests that the true reason for Johnson’s opposition to a 15 stay is that Plaintiff’s counsel does not wish to lose out on the economic opportunity to pursue the class 16 action claims. 17 In short, Johnson will not be prejudiced in any respect by a stay, while Save Mart will be 18 severely and irreparably prejudiced by being compelled to defend identical claims in different forums 19 for no valid reason. 20 F. The Court Can Also Stay This Action Pending Resolution Of The Goodwin Action Under Its Inherent Authority To Control Proceedings Before It 21 22 Finally, in addition to staying this action under the rule of exclusive concurrent jurisdiction, the 23 Court can also exercise its inherent authority to order a discretionary stay of this action. As described in 24 Save Mart’s Special Demurrer and this Reply, a stay will promote judicial economy by saving the time, 25 money, and resources of this Court, counsel, and the parties. It will also avoid the potential of this Court 26 issuing a ruling that is either duplicative of or inconsistent with a prior ruling in the first-filed Goodwin 27 Action. 28 A stay protects against the “real possibility of unseemly conflict between courts that might arise 9 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 if they were free to make contradictory decisions or awards at the same time or relating to the same 2 controversy,” and it serves “to protect litigants from the expense and harassment of multiple litigation.” 3 Franklin & Franklin v. 7-Eleven Owners for Fair Franchising, 85 Cal.App.4th 1168, 1176 (2000). 4 Therefore, the Court should also stay this Action under its inherent authority to control proceedings 5 before it. 6 III. CONCLUSION 7 For the foregoing reasons, Save Mart respectfully requests that the Court sustain its Special 8 Demurrer, and issue an order staying this action in its entirety, pending resolution of the Goodwin 9 Action. 10 11 DATED: January 12, 2024 Respectfully submitted, 12 SEYFARTH SHAW LLP 13 14 By: 15 Kerry M. Friedrichs Ryan McCoy 16 Jeffrey A. Nordlander Attorneys for Defendant 17 SAVE MART SUPERMARKETS LLC, 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 307345801v.2 1 PROOF OF SERVICE 2 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 400 Capitol Mall, Suite 2300, Sacramento, California 95814- 3 4428. On January 12, 2024, I had served the within document(s): 4 DEFENDANT SAVE MART SUPERMARKETS LLC’S REPLY IN SUPPORT OF SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 5 SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT 6 SAVE MART SUPERMARKETS LLC’S REPLY IN SUPPORT OF ITS SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 7 SUPPLEMENTAL DECLARATION OF JEFFREY A. NORDLANDER IN SUPPORT OF 8 DEFENDANT SAVE MART SUPERMARKETS LLC’S REPLY IN SUPPORT OF ITS SPECIAL DEMURRER TO PLAINTIFF’S COMPLAINT 9 by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, 10 in the United States mail at Sacramento, California, addressed as set forth below. 11 by placing the document(s) listed above, together with an unsigned copy of this declaration, in a sealed envelope or package provided by an overnight delivery carrier with postage paid on 12 account and deposited for collection with the overnight carrier at Sacramento, California, addressed as set forth below. 13 by transmitting the document(s) listed above, electronically, via the e-mail addresses set forth 14 below. 15 BLUMENTHAL NORDEHAUG BHOWMIK Attorneys for Plaintiff 16 DE BLOUW LLP DUSTIN JOHNSON Norman B. Blumenthal 17 Kyle R. Nordrehaug Norm@bamlawca.com; Aparajit Bhowmik kyle@bamlawca.com; 18 Nicholas J. De Blouw AJ@bamlawca.com; nick@bamlawca.com; Piya Mukherjee piya@bamlawca.com; 19 2255 Calle Clara charlotte@bamlawca.com; La Jolla, CA 92037 Gerardo@bamlawca.com 20 Telephone: (858) 551-1223 21 Facsimile: (858) 551-1232 22 I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with 23 postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day 24 after date of deposit for mailing in affidavit. 25 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 12, 2024, at Sacramento, California. 26 27 28 Laura Bovee PROOF OF SERVICE 305918135v.1