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1 CENTURION TRIAL ATTORNEYS, APC
Robert A. Waller, Jr. (SBN 169604)
2 robert@centurionta.com
Ryan Stygar (SBN 332764)
3 ryan@centurionta.com
8880 Rio San Diego Dr., Ste. 800
Electronically Received 12/27/2023 04:02 PM
4
San Diego, CA 92108
5 Telephone: (888) 225-5792
Facsimile: (760) 753-3206
6
Attorneys for Plaintiff DAISY GONZALEZ, individually
7
and on behalf of all others similarly situated
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF LOS ANGELES
10
11
DAISY GONZALEZ, individually and on Case No.: 23STCV26886
12 behalf of all others similarly situated,
13 Plaintiff, FIRST AMENDED CLASS ACTION
vs. COMPLAINT:
14
15 ADVENT GLOBAL SOLUTIONS, INC., a 1. Violation of California Labor Code
New Jersey Corporation; and DOES 1 through § 2802 [Unreimbursed Business-
16 50, inclusive,
Related Expenses];
17 Defendants. 2. Violation of California Business &
Professions Code § 17200, et seq.
18 (Unlawful Business Practices); and
3. Violation of California Labor Code
19 §2698, et seq. (PAGA CLAIMS)
20
21 DEMAND FOR JURY TRIAL
22
23
24
Plaintiff DAISY GONZALEZ (“Plaintiff” or “Ms. Gonzalez”), individually, and on
25
behalf of all other similarly situated and/or aggrieved employees of Defendant ADVENT
26 GLOBAL SOLUTIONS, INC., a New Jersey Corporation; and DOES 1 through 50, inclusive,
27 and/or such other affiliated entities, allege as follows:
28 ///
FIRST AMENDED CLASS ACTION COMPLAINT - 1
1 INTRODUCTION
1. This is a class action PAGA representative action brought against Defendant
2
ADVENT GLOBAL SOLUTIONS, INC., a New Jersey Corporation, which is organized,
3
existing, and doing business in California under and by virtue of the laws of the State of California
4
(Secretary of State entity number 3275050); and those fictitiously named Defendants whose
5
identity is presently unknown to Plaintiff and which are identified herein as DOES 1-50 (“DOE
6 Defendants”). Plaintiff brings this action individually and on behalf of all other similarly situated
7 and aggrieved employees who worked for Defendant, including DOE Defendants, in the State of
8 California.
9 2. Plaintiff, on behalf of herself and all Class Members, brings this action for
violations of California Labor Code § 2802, based on Defendant’s, including DOE Defendants,
10
failure and/or refusal to reimburse Plaintiff, and all similarly situated and aggrieved employees,
11
for necessary business-related expenses, including internet access and internet service provider
12
expenses, as well as cellular phone data charges, which they were required to have and maintain
13
during their employment when working from home. Plaintiffs seek compensation for
14 unreimbursed business-related expenses, applicable penalties, equitable relief, interest, and
15 reasonable attorney’s fees and costs.
16 3. Plaintiff, individually and on behalf of all proposed Class Members, brings this
17 action pursuant to California Business and Professions Code §§ 17200-17208, for Defendant’s,
including DOE Defendants, unlawful business practices as alleged, and seeks injunctive relief,
18
restitution, and disgorgement of all benefits obtained by Defendant, including DOE Defendants,
19
by failing to reimburse Plaintiff, and all other similarly situated and aggrieved employees, for
20
business-related expenses as herein alleged.
21
JURISDICTION AND VENUE
22 4. This class and state enforcement action is brought pursuant to California Code of
23 Civil Procedure § 382 and California Labor Code §§ 2698 et seq. (“PAGA”) to recover monetary
24 damages, civil penalties, and any other available relief on behalf of Plaintiff, the State of
25 California (PAGA penalties), and other current and former employees who worked for Defendant,
26
including DOE Defendants, in California; and, against whom one or more violations of any
provision of the California Labor Code were committed (“aggrieved employees”), as set forth in
27
this Complaint.
28
FIRST AMENDED CLASS ACTION COMPLAINT - 2
1 5. The monetary damages, penalties, restitution, and attorney’s fees and costs sought
by Plaintiff are within the unlimited jurisdiction limits of the California Superior Court.
2
6. This Court has jurisdiction over all Defendants, including DOE Defendants,
3
because Defendant conducts business in California; have established sufficient minimum contacts
4
in California; and otherwise intentionally avail themselves of the California market so as to render
5
the exercise of jurisdiction over them by the California courts consistent with traditional notions
6 of fair play and substantial justice. This case falls within the statutory exceptions to “minimal
7 diversity” jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(4). Upon
8 information and belief, two-thirds or more of the class members and Defendant, including DOE
9 Defendants, are citizens of California and/or (a) two-thirds of the class members and Defendant,
including DOE Defendants, are citizens of California; (b) the alleged wage and hour violations
10
occurred in California; (c) significant relief is being sought against Defendant, including DOE
11
Defendants, whose violations of California wage and hour laws form a significant basis for
12
Plaintiffs’ claims; and (d) no other class action has been filed within the past three (3) years on
13
behalf of the same proposed class against Defendant, including DOE Defendants, asserting the
14 same or similar factual allegations.
15 7. Venue is proper in this Court because Defendant, including DOE Defendants,
16 employ persons in this county, employed Plaintiff in this county, and thus a substantial portion of
17 the transactions and occurrences related to this action occurred in this county [California Code of
Civil Procedure § 395].
18
THE PARTIES
19
8. Plaintiff DAISY GONZALEZ is a resident of the City of Los Angeles, County of
20
Los Angeles, in the State of California. ADVENT GLOBAL SOLUTIONS, INC. employed, and
21
during all relevant times has employed, Ms. Gonzalez as a full-time Loan Operations employee
22 in Los Angeles, California. Ms. Gonzalez and other aggrieved employees have worked remotely
23 from their homes since at least November 2021. Ms. Gonzalez earned $50.00 per hour. Ms.
24 Gonzalez was primarily engaged in loan operations.
25 9. Defendant ADVENT GLOBAL SOLUTIONS, INC., was and is a New Jersey
26
Corporation with its corporate headquarters and principal place of business located in Texas at
12777 Jones Road, Suite 445, Houston, TX 77070. At all times hereinafter mentioned, Defendant
27
28
FIRST AMENDED CLASS ACTION COMPLAINT - 3
1 ADVENT GLOBAL SOLUTIONS, INC. was, and is, an employer with employees engaged
throughout the State of California.
2
10. Defendant ADVENT GLOBAL SOLUTIONS, INC. is hereinafter referred to as
3
“ADVENT” for ease of reference.
4
11. Plaintiff is unaware of the true names or capacities of the Defendant sued herein
5
under the fictitious names DOES 1 through 50 but will seek leave of this Court to amend the
6 Complaint and serve such fictitiously named Defendant once their names and capacities become
7 known.
8 12. Plaintiff is informed and believes, and thereon alleges, that DOES 1 through 50
9 are partners, agents, owners, subsidiaries, shareholders, managers, and/or employees of
ADVENT at all relevant times and are in some way responsible for the actions and conduct of
10
Defendant as alleged herein.
11
13. Plaintiff is informed and believes, and thereon alleges, that each and all of the acts
12
and omissions alleged herein were performed by, or is attributable to Defendant ADVENT and/or
13
DOES 1 through 50, acting as the agent, employee, alter ego and/or joint venturer of and/or
14 working in concert with each of the other co-Defendant and was acting within the course and
15 scope of such agency, employment, joint venture, or concerted activity with legal authority to act
16 on the others’ behalf. The acts of any and all Defendants were in accordance with, and represent,
17 the official policy of Defendant.
14. At all relevant times, Defendant, by and through its managing agents, officers,
18
directors, supervisors, and/or managers ratified each and every act or omission complained of
19
herein. At all relevant times, Defendant aided and abetted the acts and omissions of each and all
20
the other Defendants in proximately causing the damages herein alleged.
21
15. Plaintiff is informed and believes, and thereon alleges, that Defendant is in some
22 manner intentionally, negligently, and/or otherwise responsible for the acts, omissions,
23 occurrences, and/or transactions alleged herein.
24 16. Plaintiff filed with the State of California Labor Workforce Development Agency
25 (LWDA), and served ADVENT GLOBAL SOLUTIONS, INC. via certified return receipt, a
26
notice of claims pursuant to PAGA which included the claims asserted herein. The PAGA claim
was assigned number LWDA-CM-988075-23. Sixty-five (65) days have elapsed with the LWDA
27
taking no action on Plaintiffs’ claims and they therefore bring the Private Attorney General Act
28
FIRST AMENDED CLASS ACTION COMPLAINT - 4
1 (PAGA) claims asserted herein as an agent or proxy of the State of California who is the real
party in interest for PAGA claims asserted herein.
2
GENERAL ALLEGATIONS
3
17. Beginning in or around November 2021, at the peak of the COVID-19 pandemic,
4
Plaintiff was required by Defendant to work full-time from her home. At all times, Defendant
5
required Plaintiff, and all other similarly situated employees, to have and maintain reliable
6 internet service and access from their homes because of Plaintiff’s job duties and functions.
7 18. As a Loan Operations employee working primarily from her home, Ms. Gonzalez
8 worked at least 8 hours per day, 5 days per week. During work hours, Ms. Gonzalez was required
9 to be logged into the ADVENT internet-based Client Relationship Management system (CRM)
and/or Project Management System (PMS).
10
19. As a result of Defendant’s requirement that Plaintiff, and all others similarly
11
situated employees, maintain reliable internet from their homes, Plaintiff was required to
12
subscribe to an internet service provider and pay for the service on a monthly basis.
13
20. ADVENT’s CRM required Ms. Gonzalez, and other aggrieved employees, to self-
14 report time and work activity. Because Ms. Gonzalez, and all similarly aggrieved employees,
15 were and are required to work from home and input hours worked into ADVENT’s internet-based
16 CRM, they are all required to have, and use, their own internet service provider and/or internet
17 connection in order to perform their work for ADVENT. Ms. Gonzalez, and all other aggrieved
employees, received no reimbursement for the internet usage from ADVENT.
18
21. At no time did Defendant reimburse Plaintiff, or any other similarly situated or
19
aggrieved employees, for these necessary business-related expenses as required by California
20
Labor Code § 2802.
21
22. ADVENT has impermissibly passed its operating expenses onto Ms. Gonzalez,
22 and similarly aggrieved employees, by failing to reimburse them for the proportionate cost
23 associated with having required internet service in order to fulfill their work-related duties and
24 responsibilities. [See, e.g., Cochran v. Schwan’s Home Service, Inc. (2014) 228 Cal.App.4th 1137,
25 1140 (“We hold that when employees must use their personal cell phones for work-related calls,
26
Labor Code section 2802 requires the employer to reimburse them. Whether the employees have
cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a
27
reasonable percentage of their cell phone bills.” (fn. 1 omitted.)]
28
FIRST AMENDED CLASS ACTION COMPLAINT - 5
1 CLASS ACTION ALLEGATIONS
23. Plaintiff brings this action individually, as well as on behalf of each and all other
2
persons similarly situated, and thus seeks class certification under California Code of Civil
3
Procedure § 382.
4
24. All claims alleged herein arise under California law for which Plaintiff seeks relief
5
authorized by California law.
6 25. Plaintiff’s proposed class consists of, and is defined, as follows:
7 “All persons who are or were employed by Defendant who incurred business-
related expenses that were not reimbursed by Defendant, including internet service
8
and cell phone data charges.”
9 26. Members of the Class are referred to herein as “class members.”
10 27. Plaintiff reserves the right to redefine the Class and to add subclass(es) as
11 appropriate based on further investigation, discovery, and specific theories of liability.
12
28. There are common questions of law and fact as to all class members that
predominate over questions affecting only individual members, including, but not limited to, the
13
following:
14
(a) Whether Defendant failed to reimburse Plaintiff, and class members, for
15
necessary business-related expenses in violation of California Labor Code
16 § 2802;
17 (b) Whether Defendant engaged in unlawful business practices in violation
18 of California Business & Professions Code §§ 17200, et seq.; and
19 (c) The appropriate amount of damages, restitution, or monetary penalties
20
resulting from Defendant’s violations of California law.
29. There is a well-defined community of interest in the litigation and the class
21
members are readily ascertainable:
22
(a) Numerosity: The class members are so numerous that joinder of all
23
members would be unfeasible and impractical. The membership of the
24
entire class is unknown to Plaintiff at this time; however, the class is
25 estimated to be greater than several hundred individuals and the identity of
26 such member is readily ascertainable by inspection of Defendant’s
27 employment records.
28
FIRST AMENDED CLASS ACTION COMPLAINT - 6
1 (b) Typicality: Plaintiff has a well-defined community of interest, and
Plaintiff’s claims (or defenses, if any) are typical of all class members as
2
demonstrated herein.
3
(c) Adequacy: Plaintiff is qualified to, and will, fairly and adequately protect
4
the interests of each class member with whom she has a well-defined
5
community of interest and typicality of claims, as demonstrated herein.
6 Plaintiff acknowledges that she has an obligation to make known to the
7 Court any relationship, conflicts, or differences with any class member.
8 Plaintiff’s attorneys, the proposed class counsel, are versed in the rules
9 governing class action discovery, certification, and settlement.
(d) Superiority: The nature of this action makes the use of class action
10
adjudication superior to other methods. A class action will achieve
11
economies of time, effort, and expense as compared with separate lawsuits,
12
and will avoid inconsistent outcomes because the same issues can be
13
adjudicated in the same manner and at the same time for the entire class.
14 (e) Public Policy Considerations: Employers in the State of California violate
15 employment and labor laws every day. Current employees are often afraid
16 to assert their rights out of fear of direct or indirect retaliation. Former
17 employees are fearful of bringing actions because they believe their former
employers might damage their future endeavors through negative
18
references and/or other means. Class actions provide the class members
19
who are not named in the complaint with a type of anonymity that allows
20
for the vindication of their rights while simultaneously protecting their
21
privacy.
22 FIRST CAUSE OF ACTION
23 Violation of California Labor Code § 2802
[Unreimbursed Business Expenses]
24
(Against All Defendant)
25
30. Plaintiff incorporates by reference and re-alleges as if fully stated herein each and
26
every allegation set forth above.
27
28
FIRST AMENDED CLASS ACTION COMPLAINT - 7
1 31. California Labor Code § 2802 requires that “[a]n employer shall indemnify his or
her employee for all necessary expenditures or losses incurred by the employee in direct
2
consequence of the discharge of his or her duties, or of his or her obedience to the directions of the
3
employer, even though unlawful, unless the employee, at the time of obeying the directions,
4
believed them to be unlawful.”
5
32. Plaintiff alleges for herself, and all others similarly situated and aggrieved, that she
6 incurred necessary business-related expenses at the direction of their employer, Defendant
7 ADVENT, as a direct consequence of the discharge of their duties and responsibilities. Plaintiff
8 incurred business-related expenses for internet service.
9 33. Defendant ADVENT has refused and/or failed to reimburse or compensate Plaintiff,
and all other similarly situated or aggrieved employees, for these necessary business-related
10
expenses which should be borne by Defendant as the operator of the business and for whose benefit
11
the expenses were incurred by Plaintiff, and all others similarly situated or aggrieved.
12
34. As a direct and proximate result of Defendant’s actions as herein alleged, Plaintiff,
13
and all others similarly situated and aggrieved, have incurred monetary damages in an amount
14 according to proof at trial.
15 35. As a further direct and proximate result of Defendant’s actions as alleged, Plaintiff,
16 and all others similarly situated and aggrieved, are entitled to interest on the unreimbursed
17 expenses at the same rate as judgments in civil actions and said interest shall accrue from the date
on which the employee incurred the necessary expenditure or loss pursuant to California Labor
18
Code § 2802(b).
19
36. As a further direct and proximate result of Defendant’s actions as alleged, Plaintiff
20
has retained counsel and legal professionals to prosecute this action and is entitled to recover all
21
reasonable costs, including, but not limited to, attorneys fees incurred enforcing the rights granted
22 by this section in an amount according to proof pursuant to California Labor Code § 2802(c).
23 SECOND CAUSE OF ACTION
24 Violation of California Business & Professions Code §§ 17200, et seq.
[Unlawful Business Practice]
25 (Against All Defendant)
26
37. Plaintiff incorporates by reference and re-alleges as if fully stated herein each and
27
every allegation set forth above.
28
FIRST AMENDED CLASS ACTION COMPLAINT - 8
1 38. Defendant’s failure to reimburse Plaintiff, and all other similarly situated or
aggrieved employees, for necessary business-related expenses as herein alleged, constitutes a
2
violation of California Labor Code § 2802 and is therefore an unlawful business practice in
3
violation of California Business & Professions Code § 17200.
4
39. Plaintiff, and all other similarly situated and aggrieved employees, has incurred
5
actual harm and losses in that she parted with her money for necessary business-related expenses
6 which have not been reimbursed by Defendant.
7 40. Plaintiff, and all other similarly situated and aggrieved employees, is entitled to
8 restitution of monies which she, and all other similarly situated and aggrieved employees, parted
9 with by having to pay from their own pockets for internet service.
41. Plaintiff, and all other similarly situated and aggrieved employees, is entitled to
10
disgorgement of the illicit and unlawful monetary gains realized by Defendant through their failure
11
and/or refusal to reimburse employees such as Plaintiff, and all other similarly situated and
12
aggrieved employees, for necessary business-related expenses as required by Defendant all in an
13
amount according to proof.
14 42. Plaintiff, and all other similarly situated and aggrieved employees, are similarly
15 entitled to an injunction for specific performance under California Business and Professions Code
16 § 17202, and other equitable relief against such unlawful practices in order to prevent future losses
17 to employees such as Plaintiff, and all others similarly situated or aggrieved, for which there is no
adequate remedy at law, and to avoid a multiplicity of lawsuits. Plaintiff brings this cause
18
individually, and as a member of the general public, as a representative of all others subject to
19
Defendant’s unlawful acts and practices.
20
43. This cause of action is brought as a cumulative remedy and is intended as an
21
alternative remedy for restitution for Plaintiff, and each Plaintiff Class and/or Subclass Member,
22 for up to the four-year period before the filing of this Complaint, and as the primary remedy for
23 the Plaintiff Class and Subclasses during the fourth year before the filing of this Complaint
24 pursuant to California Business & Professions Code § 17205.
25 44. The illegal conduct alleged is continuing and there is no indication Defendant will
26
discontinue such activity. Plaintiff, and all other similarly situated and aggrieved employees, allege,
if Defendant are not enjoined from the conduct set forth in this Complaint, they will continue to
27
28
FIRST AMENDED CLASS ACTION COMPLAINT - 9
1 fail to reimburse employees who incur and pay for necessary business-related expenses for such
things as internet service and access, printers, printer ink, and paper.
2
45. Defendant’s conduct, as alleged herein, has been, and continues to be, unfair,
3
unlawful and harmful to Plaintiff, class members, and to the general public. Plaintiff, and all other
4
similarly situated and aggrieved employees, has suffered injury in fact and has lost money as a
5
result of Defendant’s unlawful business practices. Plaintiff, and all other similarly situated and
6 aggrieved employees, seek to enforce important rights affecting the public interest within the
7 meaning of California Code of Civil Procedure § 1021.5 and is therefore entitled to an award of
8 reasonable attorney’s fees in an amount according to proof.
9 THIRD CAUSE OF ACTION
10 Violation of California Labor Code § 2698, et seq.
[California Private Attorney General Act Claims]
11 (Against All Defendants)
12 46. Plaintiff incorporates by reference and re-alleges as if fully stated herein each and
13 every allegation set forth above.
14 47. Plaintiff brings this cause of action for violation of the California Private Attorney
15 General Act (PAGA) as an agent or proxy for the State of California who is the real party in interest
16 when prosecuting PAGA actions.
17 48. Plaintiff complied with and exhausted the pre-filing administrative process required
18 to bring this claim as herein alleged.
19
49. Plaintiff brings this PAGA claim for Defendant ADVENT’s violations of
20
California Labor Code §2802 for failure to indemnify and/or reimburse Plaintiffs and similarly
21
aggrieved employees for reasonable and necessary business expenses, including but not limited to
22
home internet expenses.
23
50. Plaintiff seeks to recover the penalties enumerated in California Labor Code §§
24
2698, 2699, and 2802 and for the State of California, themselves, and all other aggrieved
25
employees in an amount according to proof at trial.
26
51. As a proximate result of Defendant ADVENT’s actions and conduct Plaintiff has
27
hired attorneys and other legal professional to prosecute this action. Plaintiff is therefore entitled
28
FIRST AMENDED CLASS ACTION COMPLAINT - 10
1 to recovery of reasonable attorney fees in an amount according to proof pursuant to California
2 Labor Code §2699(g)(1).
3
4
PRAYER FOR RELIEF
Plaintiff, individually and on behalf of all others similarly situated or aggrieved, prays for
5
relief and judgment against Defendant, and each of them, as follows:
6
1. Determine this action may be maintained as a class action with Plaintiff as Class
7
Representative and Plaintiff’s counsel as class counsel;
8
2. Determine this action be maintained as a representative action pursuant to the
9 California Private Attorney General Act (PAGA);
10 3. For monetary damages in an amount according to proof;
11 4. For restitution in an amount according to proof;
12 5. For applicable penalties in an amount according to proof;
6. For an award of reasonable attorney fees pursuant to California Labor Code
13
§2699(g)(1), and/or C.C.P. §1021.5 in an amount according to proof;
14
7. For attorney’s fees in an amount according to proof pursuant to California Labor
15
Code § 2802, and California Code of Civil Procedure § 1021.5;
16
8. That Defendant, and each of them, be found to have engaged in unfair competition
17 in violation of California Business and Professions Code § 17200, and thereon
18 enjoined from engaging in further unlawful conduct;
19 9. For prejudgment interest according to proof; and
20 10. Such other and additional and/or equitable relief as this court deems fair, just and
proper.
21
JURY DEMAND
22
Plaintiff, and all other similarly situated and aggrieved employees, hereby demand a jury
23
trial of this matter on all claims for which a jury trial is available.
24
///
25 ///
26 ///
27 ///
28 ///
FIRST AMENDED CLASS ACTION COMPLAINT - 11
1
2 Dated: December 27, 2023 /s/Ryan Stygar
3
4 /s/Robert A. Waller Jr.,
5
Attorneys for Plaintiff DAISY GONZALEZ,
individually and on behalf of all others similarly
6 situated.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FIRST AMENDED CLASS ACTION COMPLAINT - 12
1 PROOF OF SERVICE
2 I am employed in the County of San Diego, State of California. I am over the age of 18
years and not a party to the within action; my business address is 8880 Rio San Diego Drive, Suite
3 800, San Diego, California 92108.
4
On December 27, 2023, I served the foregoing document described as FIRST AMENDED
5 CLASS ACTION COMPLAINT on the interested parties in this action by:
6 Joseph F. Desiderio Attorneys for Defendant
7
joseph.desiderio@jacksonlewis.com
James P. Carter
8 james.carter@jacksonlewis.com
Kimberly Ferguson
9 kimberly.ferguson@jacksonlewis.com
Jackson Lewis P.C.
10
200 Spectrum Center Dr., Suite 500
11 Irvine, CA 92618
12
13
______ BY MAIL - I am readily familiar with the firm's business practice of collection
14 and processing of correspondence for mailing with the United States Postal
Service and said correspondence is deposited with the United States Postal
15 Service the same day.
______ BY PERSONAL SERVICE - I caused such envelope to be delivered by a server
16
employed by Precedent Legal Services.
17 ______ BY FACSIMILE - I faxed said document, to the office(s) of the addressee(s)
shown above, and the transmission was reported as complete and without error.
18 __X__ BY ELECTRONIC SERVICE: Pursuant to California Code of Civil Procedure
19
§1010.6(C)(2) and California Rules of Court, Rule 2.250, I also caused such
documents to be served electronically at the e-mail addresses stated on the
20 attached service list. Such email transmissions were complete with no errors
reported. Sending email: sirena@centurionta.com.
21 __X__ STATE - I declare under penalty of perjury under the laws of the State of
22
California that the foregoing is true and correct.
23 Executed on December 27, 2023 at Lake Elsinore, California.
24 Sirena Ortega
25 Sirena Ortega
Paralegal
26
27
28
PROOF OF SERVICE
Related Content
in Los Angeles County
Ruling
MITAL TAMORO VS QUANTUM CORPORATION
Jul 26, 2024 |
23STCV03260
Case Number:
23STCV03260
Hearing Date:
July 26, 2024
Dept:
50
Superior Court of California
County of Los Angeles
Department
50
MITAL TAMORO
,
Plaintiff,
vs.
QUANTUM CORPORATION
,
et al
.
,
Defendants.
Case No.:
23STCV03260
Hearing Date:
July 26, 2024
Hearing Time:
10:00 a.m.
[TENTATIVE] ORDER RE:
PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION
AND RELATED CROSS-ACTION
Background
Plaintiff Mital Tamoro (Plaintiff) filed this action on February 14, 2023 against Defendant Quantum Corporation (Quantum). The Complaint alleges causes of action for
(1) pregnancy discrimination, (2) disability discrimination, (3) failure to accommodate,
(4) failure to engage in the interactive process, (5) denial of CFRA rights, (6) failure to reimburse expenses, and (7) interference with prospective economic advantage.
On May 7, 2024, Quantum filed a Cross-Complaint against
Larkin Benefit Administrators, d/b/a The Larkin Company (Larkin), alleging causes of action for (1) breach of contract failure to perform, (2) breach of contract failure to defend and indemnify,
(3) negligence, (4) comparative indemnity, (5) equitable indemnity, and (6) declaratory relief.
Plaintiff now moves for summary adjudication in her favor on the fourth and fifth causes of action of Plaintiffs Complaint. Quantum opposes.
Request for Judicial Notice
The Court grants Quantums request for judicial notice.
Evidentiary Objections
The Court rules on Quantums evidentiary objections as follows:
Objection No. 1: overruled
Objection No. 2: overruled
Objection No 3: overruled
Objection No. 4: overruled. The Court notes that it is unable to locate the cited language in the Declaration of Larry Herrera.
Objection No. 5: sustained
Objection No. 6: sustained
Objection No. 7: sustained
Objection No. 8: overruled
Objection No. 9: overruled
Objection No. 10: overruled. The Court notes that the cited excerpts in Objection No. 10 are contained in Exhibit 2 to the Compendium of Evidence filed by Plaintiff.
Objection No. 11: overruled. The Court notes that the cited excerpts in Objection No. 11 are contained in Exhibit 2 to the Compendium of Evidence filed by Plaintiff.
Objection No. 12: overruled
Objection No. 13: overruled
Objection No. 14: sustained as to required an extension of my disability leave of absence, overruled as to the remainder.
Objection No. 15: overruled
Objection No. 16: overruled
Objection No. 17: overruled
Legal Standard
A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in
Section 3294 of the Civil Code
, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
((
Code Civ. Proc., § 437c, subd. (f)(1)
.)
For purposes of motions for summary judgment and summary adjudication&
A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.
((
Id.,
§ 437c, subd. (p)(1)
.)
The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (
¿
Aguilar
v. Atlantic Richfield Co
. (2001) 25 Cal.4th 826, 850
¿
.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (
¿
Ibid
.
¿
) Courts
¿
liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.
¿
(
¿
Dore
v. Arnold Worldwide, Inc
. (2006) 39 Cal.4th 384, 389
¿
.)
Discussion
A.
Allegations of the Complaint
In the Complaint, Plaintiff alleges that o
n or around March 15, 2021, she began her employment with Quantum as the Director of Global Field and Channel Marketing. (Compl., ¶ 8.) During TAMOROs employment with QUANTUM, she experienced issues with Brett Zumwalt (Field Marketing Manager). (Compl., ¶ 11.) On or around May 11, 2021, TAMORO organized a meeting with [Leslie Olivetta (Human Resources)] to complain about Zumwalts difficult behavior and hostility, which was creating an intolerable working condition and added to TAMOROs stress. (Compl., ¶¶ 13-14.)
QUANTUM hired an external law firm to investigate the ongoing issues between TAMORO and Zumwalt. (Compl., ¶ 17.) The investigation concluded, and Zumwalt along with another colleague, Kimberly, took a leave of absence. This left TAMORO to pick up their workload and handle her own work concurrently&While both Kimberly and Brett were on leave, they resigned. This created a heavy workload for TAMORO. (Compl., ¶ 18.) As a result, TAMOROs stress and anxiety was exacerbated. During this time, QUANTUM did not reach out to TAMORO to help alleviate the workload. (Compl., ¶ 19.) TAMORO complained about the work-related stress to Human Resources, but nothing came from it. (Compl., ¶ 21.)
In or around April of 2021, TAMORO learned that she was pregnant and informed her supervisor, Natasha Beckly. (Compl., ¶ 12.) On or around October 1[,] 2021, TAMORO informed her supervisor Natasha Beckly via phone and Karen Edie that her doctor placed her on medical leave due to the work environment affecting her health. (Compl., ¶ 22.) TAMOROs leave of absence (hereinafter LOA) began on October 11, 2021 and would transition into her maternity leave starting October 30, 2021. (Compl., ¶ 23.) On or around October 6, 2021, TAMORO received a letter from Larkin, the company in charge of her LOA, stating that her pregnancy disability leave (hereinafter PDL) was approved from November 1, 2021, through January 10, 2022. (Compl., ¶ 24.)
On or around December 6, 2021, TAMORO emailed Laura Rebollo at the Larkin company to inform her that her doctor extended her PDL for another week because she was not recovering as originally anticipated. TAMORO was expected to return to work January 10, 2022, but with this new extension her new return date was January 17, 2022. (Compl., ¶ 25.) On or around December
8, 2021, Lark
in sent TAMORO a letter informing her that her PDL extension was approved. (Compl., ¶ 26.)
On or around December 29, 2021, TAMORO was informed by Larkin that her parental leave was approved. TAMOROs parental leave would begin on January 17, 2022 and continue through April 10, 2022. TAMORO was expected to return to work on April 11, 2022. (Compl., ¶ 27.) On or around January 5, 2022, TAMORO emailed Laura Rebollo to inform her that her doctor had extended her PDL because she was receiving treatment for her Postpartum Depression. (Compl., ¶ 28.)
On or around February 2, 2022, TAMORO emailed Rebollo with an updated work status report from her physician. Her physician extended her disability leave to February 14, 2022. (Compl., ¶ 29.) On or around February
3, 2022, Lark
in sent TAMORO a letter approving her extended leave through February 13, 2022, immediately followed by 12 weeks of parental leave. (Compl., ¶ 30.) On or around March 4, 2022, TAMORO emailed Rebollo with an updated work status report that her physician extended her leave until March 14, 2022, because of her ongoing disability. TAMORO received a letter stating that her extension was approved, and her leave was extended until March 7, 2022. (Compl., ¶ 31.)
On or around March 9, 2022, TAMORO emailed Rebollo, to inform her that her physician extended her leave once again because of her ongoing disability. TAMORO was diagnosed with generalized anxiety disorder and major depressive order&Once again, her extension was approved through March 27, 2022, immediately followed by 8 weeks of parental leave. (Compl., ¶ 32.)
Plaintiff alleges that [o]n or around March 16, 2022, QUANTUM discriminated and retaliated against TAMORO by terminating her. (Compl., ¶ 33.) During a phone call with Dana Rosebrook and Karen Edie, they informed TAMORO that she was terminated. QUANTUM terminated TAMOROs employment while she was still on her approved disability leave. QUANTUM stated that it was terminating Tamoro because it needed to fill the headcount. (Compl., ¶ 34.) Plaintiff alleges that TAMOROs sudden termination was two weeks before her first installment of her Restricted Stock Option&was due to vest. (Compl., ¶ 39.)
B.
Fifth Cause of Action for Denial of CFRA Rights
In the Complaint, Plaintiff alleges that [a]t the time QUANTUM terminated TAMORO, TAMORO had been employed
with QUANTUM for over one year and had worked over 1,250 hours in the previous year, and was therefore entitled to CFRA leave. (Compl., ¶ 35.)
In the fifth cause of action for denial of CFRA rights, Plaintiff alleges that
PLAINTIFF was a new mother with a new born child, employed by QUANTUM and protected by
Government Code § 12945
, which affords employees who recently gave birth to a child, protected leave to care for their newborn child. (Compl., ¶ 96.) Plaintiff alleges that [u]nder the California Family Rights Act, TAMORO was entitled to take a pregnancy leave up to a maximum of four months, and that QUANTUM terminated TAMOROs employment on March 16, 2022, one day into her CFRA protected leave. (Compl., ¶¶ 97-98.) Plaintiff alleges that QUANTUM denied TAMORO of her CFRA rights by terminating her just one day into her CFRA protected leave, in violation of
Government Code §12945
. (Compl., ¶ 99.)
Violations of the CFRA generally fall into two types of claims: (1) interference claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave&and (2) retaliation claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave. ((
Rogers v. County of Los Angeles
(2011) 198 Cal.App.4th 480, 487-488
.)
As noted by Quantum, Plaintiff does not appear to identify
which type of CFRA violation she is claiming. It appears Plaintiff may be asserting an interference claim because Plaintiffs fifth cause of action is for denial of CFRA rights. Plaintiff does not argue in the instant motion that Quantum retaliated against her for
exercising her right to CFRA leave
.
Pursuant to
Government Code section
12945.2, subdivision (a)
,
[i]t shall be an unlawful employment practice for any employer, as defined in paragraph (4) of subdivision (b), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period or who meets the requirements of subdivision (r), to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave.
Pursuant to
Government Code section
12945.2, subdivision (b)(4)
,
employer includes
[a]ny person who directly employs five or more persons to perform services for a wage or salary.
In the motion, Plaintiff asserts that Defendant violated Tamoros CFRA rights when it terminated her while on CFRA protected leave. (Mot. at p. 7:17-18.) In her declaration, Plaintiff states that [a]t the time of my termination, I was aware of substantially more than five people currently employed by Defendant. (Tamoro Decl., ¶ 22.) In addition, Plaintiff states that I applied for baby bonding time, and on December 29, 2021, The Larkin Company sent me a letter informing me that I had been approved for parental leave to care for my newborn child through April 10, 2022. Attached as Exhibit 2 to this declaration is a true and correct copy of the letter I received from The Larkin Company that was dated December 29, 2021. (Tamoro Decl., ¶ 12.) This December 29, 2021 letter provides,
inter alia
, that [y]ou requested twelve weeks of parental leave to care for your newborn immediately following your recovery from pregnancy disability. This leave will begin on January 17, 2021 and continue through April 10, 2022 and will be counted against Quantums leave policy, and as of March 15, 2022, against your Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) entitlements. (Tamoro Decl., ¶ 12, Ex. 2.)
In the motion, Plaintiff argues that since March 15, 2022, she had been employed with Defendant for at least 12 months and in the preceding 12 months, she had worked at least 1250 hours. (Mot. at p. 7:1-2.) In her supporting declaration, Plaintiff states that she began working for Quantum Corporation on March 15, 2021. (Tamoro Decl., ¶ 2.) Plaintiff states that [o]n March 16, [she] received a call from Human Resources Manager Dana Rosebrook as well as Karen Edie, who informed [Plaintiff] that Quantum was terminating [her] employment. (Tamoro Decl., ¶ 18.)
In support of the assertion that she worked at least 1,250 hours
during the subject 12-month period, Plaintiff appears to rely on her counsels declaration. Plaintiffs counsel asserts,
inter alia
, that
Tamoro worked 1508 hours from March 15, 2021 to October 1, 2021. (Herrera Decl., ¶ 9.) However, as set forth above, the Court sustains Quantums evidentiary objection to this statement. (
See
Quantums Evid. Objection No. 7.) The Court agrees with Quantum that Mr. Herreras declaration does not contain a sufficient factual basis or reasoned explanation for his opinion/conclusion& (Quantums Objections at p. 7:11-13.) The Court does not find that Mr. Herrera has
laid an adequate
foundation
as to the statements made in paragraphs 7-9 of his declaration.
Based on the foregoing, the Court does not find that Plaintiff has met her burden of
proving each element of her fifth cause of action for denial of CFRA rights. Moreover, even if Plaintiff had demonstrated that she
has at least 1,250 hours of service with the employer during the previous 12-month period,
(
Gov. Code, § 12945.2, subd. (a)
),
the Court finds that Quantum has raised a triable issue of material fact as to this issue. As noted by Quantum, Plaintiff attaches as Exhibit 5 to her declaration a
copy of the letter [Plaintiff] received from The Larkin Company that was dated March 10, 2022. (Tamoro Decl., ¶ 17.) As Quantum notes, the March 10, 2022 letter provides,
inter alia
, that [y]ou requested eight weeks of parental leave to care for your newborn immediately following your recovery from pregnancy disability. At this time, you are not eligible for leave under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) because you have not worked at least 1,250 hours during the past year. (Tamoro Decl., ¶ 17, Ex. 5.)
Based on the foregoing, the Court denies Plaintiffs motion for summary adjudication as to the fifth cause of action for denial of CFRA rights.
///
///
C.
Failure to Engage in the Interactive Process
Pursuant to
Government Code section 12940, subdivision (n)
,
[i]t is an unlawful employment practice&
[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
In the fourth cause of action for failure to engage in the interactive process, Plaintiff alleges that
QUANTUM knew that TAMORO suffered from work-related stress and anxiety but failed to engage in the interactive process to see if she needed an accommodation, and that QUANTUM also knew that TAMORO suffered from complications following the birth of her newborn and once again failed to engage in the interactive process to try to accommodate her. (Compl., ¶¶ 86-87.)
In the instant motion, Plaintiff first asserts that she notified Defendant that she had a physical condition that required the accommodation of a temporary leave of absence so she could return to work and perform the essential functions of her job. (Mot. at p. 8:23-25.) It is unclear what evidence Plaintiff is relying on in support of this assertion, and what physical condition Plaintiff is referring to. Plaintiffs separate statement in support of the motion does not appear to contain any facts concerning Plaintiff notif[ying] Defendant that she had a physical condition that required the accommodation of a temporary leave of absence& (Mot. at p. 8:23-25.)
Plaintiff also asserts that despite it not being her duty to initiate the interactive process, she attempted to do so during her termination call by stating that she was willing to return to work early from her leave of absence. Defendant refused to engage in this discuss [sic] and summarily stated that the decision to terminate her had already been made. (Mot. at pp. 8:26-9:2.) In her supporting declaration, Plaintiff states that [o]n March 16, I received a call from Human Resources Manager Dana Rosebrook as well as Karen Edie, who informed me that Quantum was terminating my employment&During the call with Rosebrook and Edie, I said that I would forego my baby bonding time and return to work as soon as my doctor released me on March 28 if Quantum would let me keep my job, but Rosebrook and Edie said no. (Tamoro Decl., ¶¶ 18-19.)
In the opposition, Quantum asserts that Plaintiff cannot shoehorn a request to not be terminated into a request for a reasonable accommodation due to a disability&Plaintiff fails to cite to a single legal authority to support this unfounded theory. (Oppn at p. 19:13-15, emphasis omitted.) Indeed, Plaintiff does not appear to cite any legal authority demonstrating that a request to keep her job constitutes a request for a
reasonable accommodation. Quantum cites to
King v. United Parcel Service, Inc.
(2007) 152 Cal.App.4th 426, 443
, where the Court of Appeal noted that
[t]he interactive process of fashioning an appropriate accommodation lies primarily with the employee&It is an employees responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee
.
(Internal quotations and citations omitted.)
Based on the foregoing, the Court does not find that Plaintiff has met her burden of
proving each element of her fourth cause of action for failure to engage in the interactive process. Thus,
the Court denies Plaintiffs motion for summary adjudication as to the fourth cause of action.
Conclusion
Based on the foregoing,
Plaintiffs
motion for summary adjudication is denied in its entirety.
Quantum is ordered to provide notice of this ruling.
DATED:
July 26, 2024
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
Ruling
JORGE L. VASQUEZ HERNANDEZ, INDIVIDUALLY, ET AL. VS CALIBER AEROSPACE, LLC, A TEXAS LIMITED LIABILITY COMPANY, ET AL.
Jul 26, 2024 |
23STCV20323
Case Number:
23STCV20323
Hearing Date:
July 26, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
JORGE L. VASQUEZ HERNANDEZ,
individually, and on behalf of all others
similarly situated
,
Plaintiff,
vs.
CALIBER AEROSPACE, LLC, a Texas
Limited Liability Company; EMPLOYER
SOLUTIONS STAFFING GROUP II, LLC, a
Minnesota Limited Liability Company; and
DOES 1 through 10, inclusive
,
Defendants.
CASE NO.:
23STCV20323
[TENTATIVE] ORDER RE:
MOTION FOR PRELIMINARY APPROVAL OF CLASS AND PAGA REPRESENTATIVE ACTION SETTLEMENT
Date: July 26, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: JORGE L. VASQUEZ HERNANDEZ, individually, and on behalf of all others similarly situated (Plaintiff)
RESPONDING PARTY: None
The Court has considered the moving papers.
The motion is unopposed.
BACKGROUND
On August 24, 2023, Plaintiff brought this action against Defendants CALIBER AEROSPACE, LLC and EMPLOYER SOLUTIONS STAFFING GROUP II, LLC (collectively, Defendants) for civil penalties under the Private Attorneys General Act of 2004, California Labor Code §§ 2698 et seq. (PAGA) stemming from Defendants alleged violations of the Labor Code.
Upon joint stipulation seeking leave of court to file Plaintiffs First Amended Complaint (FAC), which was granted, Plaintiff filed the operative FAC asserting the following causes of action: 1) Violation of Labor Code §§ 204, 246, 510, 1194, 1198 (Failure to Pay All Wages); 2) Violation of Labor Code §§ 226.7, 512 (Failure to Provide Meal Periods); 3) Violation of Labor Code § 226.7 (Failure to Provide Rest Periods); 4) Violation of Labor Code § 226, (Failure to Keep Accurate Itemized Wage Statements); 5) Violation of Labor Code §§ 201-203 (Failure to Pay Wages Upon Termination of Employment); 6) Violation of Labor Code § 2802 (Failure to Reimburse for Necessary Expenditures); 7) Violation of Bus. & Prof. Code § 17200,
et seq.
(Unfair Business Practices); and 8) Violation of the Private Attorneys General Act, Labor Code sections 2698,
et seq.
On May 1, 2024, Plaintiff filed the instant motion for preliminary approval of class and PAGA representative action settlement (the Motion).
No opposition or reply has been filed.
DISCUSSION
Legal Standard
Approval of class action settlements occurs in two steps.
First, the court preliminarily approves the settlement and the class members are notified as directed by the court.
(Cal. Rules of Court, rule 3.769(c), (f);
Cellphone Termination Fee Cases
(2009) 180 Cal.App.4th 1110, 1118.)
Second, the court conducts a final approval hearing to inquire into the fairness of the proposed settlement.
(Cal. Rules of Court, rule 3.769(e);
Cellphone Termination Fee Cases, supra
, 180 Cal.App.4th at 1118.)
Any party to a settlement agreement may serve and file a written notice of motion for preliminary approval of the settlement.
(Cal. Rules of Court, rule 3.769(c).)
The settlement agreement and proposed notice to class members must be filed with the motion, and the proposed order must be lodged with the motion.
(
Id.
)
The trial court has broad discretion to determine whether the settlement is fair.
(
Cellphone Termination Fee Cases, supra
, 180 Cal.App.4th at 1117 [quoting
Dunk v. Ford Motor Co.
(1996) 48 Cal.App.4th 1794, 1801].)
In determining whether to approve a class settlement, the courts responsibility is to prevent fraud, collusion or unfairness to the class through settlement and dismissal of the class action because the rights of the class members, and even named plaintiffs, may not have been given due regard by the negotiating parties.
(
Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America
(2006) 141 Cal.App.4th 46, 60.)
ANALYSIS
A.
Class Certification is Appropriate.
A class action is proper when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.
(Code Civ. Proc., § 382.)
The party seeking certification bears the burden of establishing the existence of an ascertainable class and a well-defined community of interest among class members.
(
Dunk v. Ford Motor Co.
(1996) 48 Cal.App.4th 1794, 1806.)
The proposed class consists of approximately 82 class members, all of whom may be identified by reference to Defendants records that pertain to non-exempt status and dates of employment.
(Motion, p. 9; Class Action and PAGA Settlement Agreement (Settlement), ¶ 4.1.)
Class members share a common interest in determining whether Defendants violated wage and hour requirements under state and related federal law, including the following issues: i. Whether or not Defendants paid proper wages to the Class; ii. Whether or not Defendants provided meal periods to the Class; iii. Whether or not Defendants provided rest periods to the Class; iv. Whether or not Defendants paid compensation timely upon separation of employment to former Class Members; v. Whether or not Defendants paid compensation timely throughout Class Members employment; vi. Whether or not Defendants provided accurate itemized wage statements to the Class; vii. Whether or not waiting-time penalties are available to the Class for violation of California Labor Code § 203; viii. Whether or not Defendants reimbursed for necessary business expenses pursuant to California Labor Code § 2802; ix. Whether or not Defendants engaged in unlawful or unfair business practices affecting the Class in violation of California Business and Professions Code §§ 17200-17208; and x. Whether or not Plaintiff and the Class are entitled to penalties pursuant to PAGA.
(Declaration of Lilit Tunyan in Support of Plaintiffs Motion (Tunyan Decl.), ¶ 37.)
Thus, based on the commonality of issues and numerosity of class members, class resolution is a superior method of adjudication.
Plaintiffs claims, as alleged in the FAC, are typical of the class and arise from the same common questions, and Plaintiff is an adequate representative whose interests align with the class.
Like other class members, Plaintiff was employed by Defendants in a non-exempt position during the proposed class period, and Plaintiff claims that he was subject to the same policies alleged to have impacted the entire class.
(Tunyan Decl., ¶ 36.)
Plaintiff alleges that he and other class members share the same claims stemming from Defendants alleged violations of the Labor Code.
Additionally, the proposed class counsel is qualified to represent the class. Plaintiffs counsel is experienced in wage and hour class action litigation and has no conflicts of interest with absent class members. (Tunyan Decl., ¶¶ 20-26, 39.)
Accordingly, class certification is appropriate.
B.
The PAGA Penalties Are Appropriate.
A court must review and approve any PAGA penalties sought as part of a proposed settlement agreement.
(Lab. Code § 2699, subd. (l).)
[C]ivil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the Labor and Workforce Development Agency for enforcement of labor laws and education of employers and employees about their rights and responsibilities under this code, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes; and 25 percent to the aggrieved employees.
(Lab. Code, § 2699, subd. (i).)
The PAGA penalties here comply with this requirement.
(Settlement, p. 9, ¶ 3.2.5.) Accordingly, the PAGA penalties are appropriate, subject to a finding that the settlement is fair.
Additionally, a proposed PAGA settlement must be submitted to the Labor and Workforce Development Agency (LWDA) at the same time that it is submitted to the court for review and approval.
(Lab. Code § 2699, subd. (l)(2).)
Here, counsel for Plaintiff provided a copy of the notice of the PAGA settlement to the LWDA through the online submission portal.
(Tunyan Decl., ¶¶ 42-43; Exh. 2.)
Thus, Plaintiff demonstrated compliance with Labor Code section 2699(l)(2).
C.
The Terms of Settlement Are Fair.
Settlement of a class action requires court approval to prevent fraud, collusion, or unfairness to the class.
(
Dunk, supra,
48 Cal.App.4th at 1800-1801.)
In making the fairness determination, a presumption of fairness exists where (1) the settlement is reached through arms-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.
(
Id.
at p. 1802.)
The proposed settlement was reached through a mediation session with Michael Young, Esq., a highly experienced and well-regarded mediator for wage and hour class action litigation, during which the Parties discussed at length the burdens and risks of continuing with the litigation as well as the merits of the claims and defenses. (Tunyan Decl., ¶ 7.)
In connection with the mediation, the parties engaged in substantial discovery and investigation, including, inter alia, the exchange of informal data and discoverable information in preparation for the settlement negotiations.
The Parties have analyzed payroll and other data pertaining to Plaintiff and the Class during the relevant Settlement Period, including but not limited to the numbers of former and current members of the Class, average workweeks, sample size time and pay records and average rate of hourly pay, wage and hour policies. (
Id.
¶ 5.)
The settlement was therefore reached through arms-length bargaining with sufficient investigation to allow counsel and the Court to act intelligently.
Defendants will pay a gross settlement amount of $110,000.00, which is about 74% of the $148,367.80 estimate of risk-adjusted recovery (excluding interest) at this stage in the litigation.
(Tunyan Decl., ¶¶ 10(c), 17; Settlement, ¶ 3.1.)
Of this amount, no more than $10,000.00 will be paid to Plaintiff as a class representative service payment, no more than $36,666.67 will be paid as attorney fees, no more than $16,000.00 will be paid as class counsel litigation expenses payment, no more than $10,000.00 will be paid for settlement administration, and $15,000.00 will be paid as PAGA penalties.
(Settlement, pp. 7-9, ¶ 3.)
Of the PAGA payment, $11,250.00 (75%) will be paid to the LWDA and $3,750.00 (25%) will be allocated to the individual PAGA payments. Class members individual payments will be based on their number of workweeks during the class period.
(Settlement, p. 8, ¶ 3.2.4.)
Incentive payments are based on the expense and risk undertaken by named plaintiffs for the benefit of other class members.
(
Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles
(2010) 186 Cal.App.4th 399, 412.)
Based on Plaintiffs involvement in this action (Tunyan Decl. ¶ 32), a $10,000.00 payment to Plaintiff is reasonable.
The requested $36,666.67 in attorney fees is reasonable and consistent with fee awards in class actions.
(
Chavez v. Netflix, Inc.
(2008) 162 Cal.App.4th 43, 66, fn. 11 [Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery, internal quotation marks omitted].)
Additionally, the requested $16,000.00 in costs is reasonable.
The parties agreed to recommend Phoenix Class Action Administration Solutions (Phoenix) as the settlement administrator.
(Tunyan Decl., ¶ 33.)
Based on the Courts experience, the $10,000.00 requested fee is reasonable.
As discussed above, Plaintiffs counsel has extensive experience in labor and employment law, including class and representative actions.
(Tunyan Decl., ¶¶ 20-26.)
There are no objectors to the settlement at this time, so at the preliminary approval stage, the proposed settlement is entitled to a presumption of fairness.
D.
The Notice Procedure Is Appropriate.
The Notice to Class Members (Notice) will issue within 14 days of receipt of the Class List (Settlement, ¶ 7.4.2).
The Notice describes how to dispute workweeks, submit an objection in writing, in person, or through an attorney, or request exclusion (Settlement, ¶¶ 7.4 7.7)
The content of the Notice contains a brief explanation of the case, a statement regarding exclusion from the class, a procedure for exclusion, a statement that judgment will bind all non-excluded members, and a statement that any member who does not request exclusion may appear through counsel, in compliance with California Rules of Court, rule 3.766(d).
If a class member wants to be excluded, one can exclude himself or herself from the Settlement by submitting a written request for exclusion or otherwise notifying the Administrator in writing.
Class members do not need to take any action to submit a claim if they do wish to remain in the class.
(Exh. A to Settlement, Notice.)
Accordingly, the proposed notice procedure is appropriate.
RULING
Based on all the foregoing, Plaintiffs Motion is GRANTED.
The Court sets the following dates related to the settlement:
Defendants must provide the Class Data to the Administrator within 14 days of the preliminary approval.
The Administrator must serve notices to Class Members within 14 days of receiving the Class List.
Members of the Settlement Class shall have 45 calendar days from the mailing of the Class Notice to object or opt out.
The Final Approval Hearing is set for November 5, 2024 at 8:30 a.m.
Class Counsel shall file the Motion for Final Approval of Settlement at least 16 court days prior to hearing.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 26th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
MARIA RIVERO VS COUNTY OF LOS ANGELES, ET AL.
Jul 29, 2024 |
23STCV07694
Case Number:
23STCV07694
Hearing Date:
July 29, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
MARIA RIVERO
,
Plaintiff,
v.
COUNTY OF LOS ANGELES; NANCY CANOSA; and DOES 1 to 10
,
Defendants.
Case No.:
23STCV07694
Hearing Date: July 29, 2024
Trial Date: N/A
[TENTATIVE] RULING RE:
MOTION TO COMPEL DEFENDANT LOS ANGELES COUNTYS FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS TO PLAINTIFFS FIRST SET OF PRODUCTION OF DOCUMENTS AND FOR MONETARY SANCTIONS OF $1650
.
Background Allegations
This wrongful termination claim involves the plaintiff's employment with Child Support Services for Los Angeles County. Plaintiff alleges that her supervisor failed to address workplace safety concerns and made inappropriate comments about her age and ethnicity.
Plaintiff Maria Rivero (Plaintiff) sues Defendants County of Los Angeles (LA County), Nancy Canosa (Canosa), and Does 1 to 10 (collectively Defendants) pursuant to an October 30, 2023, First Amended Complaint (FAC) alleging claims of (1) Medical Leave Retaliation, Govt. Code § 12945.2 (CFRA), (2) Paid Sick Leave Retaliation, Labor Code § 245 et. seq. including 246.5, (3) Paid Sick Leave Discrimination, Labor Code § 245 et seq. including 246.5, (4) Medical Leave Discrimination, Govt. Code § 12945.2 (CFRA), (5) Retaliation for Requesting Accommodations for Disabilities, Govt. Code § 12940(m), (6) Failure to Engage in a Timely and Good Faith, Interactive Process to Determine Reasonable Accommodation for Disability, Govt. Code § 12940(n), (7) Failure to Reasonably Accommodate Disabilities, Govt. Code § 12940(m), (8) Disability Discrimination, Govt. Code § 12940(a), (9) Discrimination Based on Ancestry Disparate Treatment, Govt. Code § 12940, (10) Discrimination Based on Age Disparate Treatment, Govt. Code § 12940, (11) Harassment Based on Ancestry, Govt. Code § 12940, (12) Harassment Based on Age, Govt. Code § 12940, (13) Retaliation for Opposing Violations of FEHA (Govt. Code § 12900, et seq.), Govt. Code § 12940(h), (14) Failure to Prevent and Stop Harassment, Discrimination, and Retaliation, Govt. Code § 12940(j), (k), and (15) Whistleblower Retaliation, Labor Code §§ 1102.5 & 1102.6.
On April 07, 2023, Plaintiff Maria Rivero filed a Complaint against Defendants County of Los Angeles (LA County), Nancy Canosa (Canosa), and Does 1 to 10 (collectively Defendants).
On June 12, 2023, Defendants demurred to the Complaints sixteen causes of action based on the sufficiency of the pleading.
That same day, Defendants moved to strike portions of the Complaint related to punitive damages.
On October 9, 2023, the Court sustained Defendants Demurrer to the Complaint in part, mooted the motion to strike, and granted Plaintiff twenty (20) days leave to amend her Complaint.
On October 30, 2023, Plaintiff filed the operative complaint against the Defendants, alleging fifteen (15) causes of action.
Defendants collectively filed their Answer to the FAC on January 02, 2024.
Plaintiff filed two motions to compel further responses and production of documents (CRS #4768, filed 3/26/24) and a motion to compel further responses to special interrogatories (CRS #3793, filed 3/28/24 [in addition to a prior motion to compel special interrogatories, CRS #7838, filed 2/21/24].) Both motions requested monetary sanctions of $1650. On June 17, 2024, Plaintiff filed a notice of withdrawal of motion to compel further responses to Defendants supplemental responses to special interrogatories nos. 2-5 relevant to CRS#3793, but stated that Plaintiff was not withdrawing her separate motion to compel further responses to Defendants initial responses to Plaintiffs first set of special interrogatories, nos. 6-8 (of which only No. 7 actually remains in issue.) A subsequent notice of withdrawal filed on July 8, 2024 indicated that the previously filed motion to compel further special interrogatory responses (CRS#7838) was now being withdrawn. As stated therein, the only motion that continued to be pending was the motion to compel further responses to requests for production of documents.
Defendants opposed the remaining motion on July 16, 2024. No reply has been filed as of July 25.
Motion to Compel Further Production
Timeliness
A motion to compel further discovery responses must be filed and served within 45 days after the initial verified response or supplemental verified response was personally served or by any specific later date that the discovering party agreed to in writing. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c) [
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
,
supra
, at p. 403].) Extra time is added to the 45 days if the response was served by a method other than personal delivery. (See Code Civ. Proc., §§ 1010.6, subd. (a)(3)(B), 1013, subds. (c), (e), 2016.050.)
Here, the motion is timely.
Meet and Confer
A motion to compel further production must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(1).) A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.)
Here, the parties met and conferred and conducted an IDC.
Separate Statement
A motion to compel further responses to interrogatories, demands to produce, or RFAs must be accompanied by a separate statement unless (1) no response has been provided to the discovery request or (2) the court has allowed the moving party to submit a concise outline of the discovery request and each response in dispute in place of the separate statement. (Cal. Rules of Court, rule 3.1345, subd. (a)(1); see Code Civ. Proc., §§ 2030.300, subd. (b)(2), 2031.310, subd. (b)(3), 2033.290, subd. (b)(2).)
Here, such a separate statement was filed.
Legal Standard
A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (See Code Civ. Proc., § 2031.310, subd. (a);
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 403.)
To request further production, a movant must establish: (1) good cause for the production (Code Civ. Proc., § 2031.310, subd. (b)(1);
Sinaiko
,
supra
, at p. 403); and (2) that a further response is needed because (a) the responding partys statement of compliance with the demand to produce is incomplete Code Civ. Proc., § 2031.310, subd. (a)(1)), (b) the responding partys representation that it is unable to comply is inadequate, incomplete, or evasive (Code Civ. Proc., § 2031.310, subd. (a)(2)), (c) the responding partys objection in the response is without merit or is too general (Code Civ. Proc., § 2031.310, subd. (a)(3);
Catalina Island Yacht Club v. Superior Court
(2015) 242 Cal.App.4th 1116, 1127), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (Code Civ. Proc., § 2031.310, subd. (e)).
Order Compelling Further Production
:
Plaintiff seeks further production of the following:
·
Requests 7-10, seeking documents reflecting that any other employee complained that plaintiff was treated unfairly based on her protected classes of age, ancestry, disability or medical leave.
·
Requests 11 and 2, seeking any investigation documents into complaints that plaintiff was treated unfairly on the above grounds.
·
Request 13, seeking documents relating to any complaint by any other employee that certain individuals Nancy Canosa or Geanie Chough had engaged in discrimination or harassment on the same protected grounds.
Defendant County of Los Angeles opposes the requests, arguing that certain terms in the requests are vague, such as any assertion, concern or complaint, unfair criticism, insensitive or offensive language. The County argues there is no limitation as to time and Plaintiff only began working for Ms. Canosa in 2017. The County also argues that the requested information is privileged and protective by the deliberative process doctrine, the official information privilege, settlement privilege and mediation privileges, and that the requested information would violate the privacy rights of third parties. Finally, the County argues that Plaintiffs citations to cases involving the admissibility of me too evidence at trial is not applicable to whether a plaintiff can seek discovery of such evidence.
The Court GRANTS the motion, in part, as modified.
First, however, the Court agrees with the Defendant that the requests should be limited in time. Documents from the beginning of Plaintiffs employment are remote and do not relate to the decisionmakers alleged to have engaged in discriminatory conduct here. It appears in the motion that Plaintiff is limiting the requests to the past four years. (Mot., p. 10:26-27.) Accordingly, the Court will limit the timeframe to January 1, 2020 to the present.
Second, if the County has documents that it contends are covered by the attorney/client, work product, settlement or mediation privileges, there is an easy and well established fix written into the statute: it must provide a privilege log so that Plaintiff can ascertain whether there is a basis to challenge the assertions. (Code Civ. Proc. § 2031.240, subd. (c).)
The remaining objections, however, are not well taken.
First, the Court sees no terms that are excessively vague that they cannot be responded to.
Second, so-called me too evidence of complaints by other employees has been held to be relevant and admissible in discrimination and harassment cases. (
Meeks v. Autozone, Inc.
(2018) 24 Cal.App.5th 855, 871;
Pantoja v. Anton
(2011) 198 Cal.App.4th 87, 129;
Johnson v. United
Cerebral Palsy/Spastic Childrens Foundation
(2009) 173 Cal.App.4th 740, 767.) If evidence is potentially relevant and admissible at trial, then it is by definition discoverable, as the scope of discovery in California is broad. [A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Cal. Code Civ. Proc. § 2017.010; see also
Pacific Tel. & Tel. Co. v. Superior Court
(1970) 2 Cal.3d 161 [An appellate court cannot reverse a trial courts grant of discovery under a relevancy attack unless it concludes that the answer sought by a given line of questioning cannot as a reasonable possibility lead to the discovery of admissible evidence or be helpful for preparation for trial.].)
Third, the privacy rights of the potential third parties who complained that either Plaintiff had been discriminated against or that they had, are outweighed by the relevance of such information to this action, as well as the fact that the information can be protected by a routine protective order limiting the use of the information to this lawsuit. (
Puerto v. Superior Court
(2008) 158 Cal.App.4th 1242, 1259.) The parties have already entered into, and the Court has signed, a stipulated protective order, as of March 18, 2024. This same order will apply to all the additional discovery provided regarding third parties in this order.
Finally, as to the deliberative process doctrine and the official information privilege, the County includes a single page in the opposition (at pp. 5-6) regarding this argument, citing a single case,
N.L.R.B. v. Sears, Roebuck
(1974) 421 U.S. 132. Without pin cite, the Court concludes that the County means to reference what has been called the deliberative process privilege, which is called in that decision the executive privilege, in the context of the Freedom of Information Act (FOIA). The case further discusses the fact that the same privilege often overlaps with the attorney work product privilege: It is equally clear that Congress had the attorneys work-product privilege specifically in mind when it adopted Exemption 5. (
Id.
at p. 154.) An additional Exemption 7 to the FOIA was discussed dealing with investigatory records compiled for law enforcement purposes. (
Id.
at p. 164.) Of course, that is a federal law not at issue here, nor are any of the alleged investigations in this case law enforcement related. Without a pin cite, the Court does not see the relevance of this decision to the instant case, in which the Court has already held that matters which are attorney work product may be withheld subject to a privilege log.
The County also quotes from California Evidence Code section 1040. However, the County does not discuss whether and how that code section applies to the evidence sought here. Under that statute, the County has the burden to show either that disclosure is forbidden by an Act of Congress or a statute of this state, or that disclosure is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice. (
Id.,
subd. (b).) The County has not done that. Accordingly, the County has not met its burden of showing that either the deliberative process privilege or Evidence Code section 1040 apply here to prevent the disclosure. (See
Labor & Workforce Development Agency v. Superior Court
(2018) 19 Cal.App.5th 12, 25 [party resisting disclosure bears burden of proving that exemption from disclosure under the California Public Records Act applies].)
Order Denying Sanctions
:
Except in certain circumstances involving electronic stored information, the court must impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).)
Here, the Court finds that several of the arguments made by the County were not supported. However, the objection on behalf of third parties was not frivolous, and the Coutt does not find it unreasonable in this context for the County to oppose on behalf of those third parties, rather than voluntarily providing such third-party discovery. Accordingly, on this sole ground, the Court will not order sanctions because the circumstances render the imposition of sanctions unjust.
Conclusion
The Court GRANTS Plantiffs motion in part, limiting the production to January 1, 2020 to the present, subject to a privilege log, and with third party documents subject to a protective order. The Court DENIES the Plaintiffs request for sanctions. The Court orders further responses to be served on plaintiff within 15 court days.
Ruling
ISAIAH DRYER VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA
Aug 08, 2024 |
23STCV09605
Case Number:
23STCV09605
Hearing Date:
August 8, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
ISIAH DRYER,
Plaintiff,
vs.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA, A POLITICAL
SUBDIVISION OF THE STATE OF
CALIFORNIA; and DOES 1 through 20,
inclusive,
Defendants.
CASE NO.: 23STCV09605
[TENTATIVE] ORDER RE:
DEFENDANTS MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO FORM INTERROGATORIES, SET ONE
Date: August 8, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Defendant Regents of the University of California
RESPONDING PARTY: Plaintiff Isiah Dryer
The Court has considered the moving, opposition, and reply papers.
BACKGROUND
Plaintiff Isiah Dryer (Plaintiff) is a disabled African American former employee of Defendant Regents of the University of California (UC or Defendant). He filed a complaint on May 1, 2023, alleging multiple causes of action against Defendant. The operative Second Amended Complaint (SAC) alleges seven causes of action under the Fair Employment and Housing Act (FEHA): (1) Discrimination; (2) Failure to Prevent Discrimination; (3) Failure to Engage in a Timely Good Faith Interactive Process; (4) Failure to Provide Reasonable Accommodation; (5) Retaliation; (6) Harassment; and (7) Failure to Prevent Harassment.
Defendant served Form Interrogatories, Set One, on Plaintiff on October 10, 2023. (Newell Decl., ¶ 3; Exhibit A.) Defendant received Plaintiffs responses on November 14, 2023. (Newell Decl., ¶ 4, Ex. B).
Plaintiff responded with boilerplate objections and no verified responses.
However,
Plaintiffs counsel stated they would be supplementing with substantive responses. (Newell Decl., ¶ 7.)
In response, Defense counsel granted a two-week extension to Plaintiff to provide substantive responses.
(
Id
.)
On November 28, 2023, Plaintiff requested additional time to supplement their responses until December 12, 2023.
(Newell Decl., ¶ 8.)
Defense counsel immediately granted the request.
(
Id
.)
For the next few months, Plaintiff continued to request extensions to provide supplemental responses by December 18, 2023, January 5, 2024, January 12, 2024, January 19, 2024, February 16, 2024, and finally March 4, 2024.
(Newell Decl. ¶ 9, Exhibit C).
After eight extension requests, and nearly five months since the requests were first served upon Plaintiff, Plaintiff has not provided any substantive responses to the Form Interrogatories.
(Newell Decl. ¶ 12.)
On March 4, 2024, Defendant filed this motion to compel Plaintiffs further responses to Defendants Form Interrogatories, Set One, and request for sanctions against Plaintiff.
On April 9, 2024, Plaintiff filed a one-page opposition, asserting only one argument, that Defendant failed to request an Informal Discovery Conference (IDC) before filing this motion, against Department 56 rules.
Plaintiff is hereby informed that with the sunsetting of the requirements for an IDC in CCP Section 2016.080, there is no longer a statutory basis for Courts to impose the requirement of an IDC before a motion to compel, and this Court no longer does so.
On April 15, 2024, Defendant replied.
MEET AND CONFER
The meet and confer requirement has been met.
DISCUSSION
Under California
Code of Civil Procedure
, Section 2017.010 any person may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.
Discovery may relate to the claim or defense of the party seeking discovery. (Code Civ. Proc. § 2017.010.)
The Court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (
Lipton v. Superior Court
(1996) 48 Cal.App.4th 1599, 1611.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (
Id
.)
Discovery statutes are construed liberally in favor of disclosure. (
Obregon v. Superior Court
(1998) 67 Cal.App.4th 424, 434.) Where a party objects to a motion to compel, the burden is on the responding party to justify any objection. (
Fairmont Ins. Co. v. Superior Court
(2000) 22 Cal.4th 245, 255.) To support an objection to a request for production of documents, the objecting party has to establish the validity of its objections with supporting facts in order to meet its burden. (
Southern Pac. Co. v. Superior Court
(1969) 3 Cal.App.3d 195, 198.)
Issue No.1: Good Cause
A motion to compel further responses to the production of documents must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc. § 2031.310(b)(1).) Code Civ. Proc., § 2031 . . . which applies to document production requests served on a party, requires a party seeking to compel such production to
set forth the specific facts
showing good cause justifying the discovery sought by the inspection demand.
(
Calcor Space Facility, Inc. v. Superior Court
(1997) 53 Cal.App.4th 216, 223-224, emphasis added.) In law and motion practice, factual evidence is supplied to the court by way of declarations. (
Id
. at 224.)
The Court finds that Defendant has met the good cause requirement to justify Plaintiffs further responses to Form Interrogatories, Set One. Form Interrogatories are prepared by the Judicial Council, and by their very nature are reasonably calculated to lead to the discovery of admissible evidence.
Based on the foregoing, the Court GRANTS Defendants motion to compel Plaintiffs further responses to Defendants first set of form interrogatories and orders that complete, verified responses without further objections are to be served by Plaintiff on Defendant within twenty days of the date of this order.
Issue No. 2: Monetary Sanctions
Defendant asserts that monetary sanctions should be imposed against Plaintiff for failure to respond or to submit to an authorized method of discovery under CCP § 2023.010. Defendant requests monetary sanctions of $1,208.00 against Plaintiff. The Court finds that the pro per Plaintiffs lack of understanding of the discovery motion process is good cause for this Court to DENY Defendants request for monetary sanctions for this single occasion.
No such forebearance should be expected should a similar situation occur in the future.
Moving party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 8th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
MARTIN HUTTO VS CITY OF TORRANCE, A MUNICIPAL CORPORATION, ET AL.
Jul 26, 2024 |
23TRCV01212
Case Number:
23TRCV01212
Hearing Date:
July 26, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
MARTIN HUTTO,
Plaintiff,
Case No.:
23TRCV01212
vs.
[TENTATIVE] RULING
CITY OF TORRANCE,
Defendant.
Hearing Date:
July 26, 2024
Moving Parties:
Defendant City of Torrance
Responding Party:
Plaintiff Martin Hutto
(1)
Motion to Compel Further Responses to Special Interrogatories, Set One
(2)
Motion to Compel Further Responses to Requests for Production of Documents, Set One
The Court considered the moving, opposition, and reply papers.
RULING
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
BACKGROUND
On April 19, 2023, plaintiff Martin Hutto filed a complaint against City of Torrance and Torrance Police Department for (1) violation of POBRA, (2) declaratory relief, and (3) Labor Code §1102.5.
On April 25, 2023, the court (Judge Frank) issued a TRO on April 25, 2023.
On September 15, 2023, the court issued a preliminary injunction.
LEGAL AUTHORITY
45-Day Rule
:
This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP §1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand.
CCP §§2031.310(c), 2016.050; see
Sperber v. Robinson
(1994) 26 Cal. App. 4th 736, 745.
The 45-day time limit is mandatory and jurisdictional.
Sexton v. Superior Court
(1997) 58 Cal. App. 4th 1403, 1410.
The parties, however, can also agree in writing on a specific later date by which to file the motion to compel.
CCP §2031.310(c).
Meet-and-Confer Requirement
:
The motion to compel further responses must be accompanied by a declaration showing a reasonable and good faith attempt to resolve the issues outside of court (so-called meet and confer).
CCP §§2016.040, 2031.310(b)(2).
Separate Statement
:
Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement.
This includes a motion to compel further responses to demand for inspection of documents or tangible things.
CRC Rule 3.1020(a)(3).
Interrogatories
CCP §2030.300 states:
(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
(1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general.
(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .
CCP §2030.220 states:
(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.
(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.
CCP §2030.230 states:
If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. . . .
CCP §2030.010(b) provides:
An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on
information obtained or legal theories developed in anticipation of litigation or in preparation for
trial.
Request for Production of Documents
On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply:
(1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general.
CCP § 2031.310(a).
A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.
CCP § 2031.220.
A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand.
This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.
This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.
CCP § 2031.230.
A motion to compel further response to requests for production shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.
CCP § 2031.310(b)(1).
To establish good cause, the burden is on the moving party to show both:
[1]
Relevance to the subject matter
(e.g., how the information in the documents would tend to prove or disprove some issue in the case);
and
[2]
Specific facts justifying discovery
(e.g., why such information is necessary for trial preparation or to prevent surprise at trial).
The fact that there is
no alternative source
for the information sought is an important factor in establishing good cause for inspection.
But it is
not
essential in every case.
Weil & Brown,
Civil Procedure Before Trial
, 8:1495.6 (citations omitted).
Declarations are generally used to show the requisite good cause for an order to compel inspection.
The declarations must contain specific facts rather than mere conclusions.
Id.
at 8:1495.7 (citation omitted).
The declarations may be on information and belief, if necessary.
However, in such cases, the specific facts supporting such information and belief (the sources of the information) must also be alleged.
Id.
at 8:1495.8 (citation omitted).
Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and specific facts constituting good cause for inspection.
Id.
at 8:1495.9.
If good cause is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).
Id.
at 8:1496 (citation omitted).
DISCUSSION
Defendant City of Torrance requests that the Court compel plaintiff to respond further to Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60.
The Court notes only the requests that remain at issue based on the reply.
In the reply, the City withdrew its motion as to Special Interrogatories, Nos. 1-46, 48, 50-53, 55, 57, 59-59, 61, 63, 65-66, 68-72, 74, 83, 85, 87-89, and 91-102 and Requests for Production of Documents, Nos. 3-4, 8-13, 26, 38, 41, 44, 50, and 54-57 based on plaintiff providing supplemental responses.
On December 19, 2023, defendant served its discovery requests.
On February 12, 2024, plaintiff served responses and objections.
On July 1, 2024, pursuant to joint stipulation and order, the hearing on the motions was continued to allow the parties to reach a stipulation regarding the discovery and use in the litigation of plaintiffs confidential police officer personnel records and information, and protective order, without the need for a noticed Pitchess motion.
The complaint alleges that that plaintiff was investigated and given educational reminders in connection with two arrests he made.
Plaintiff apprehended suspects in a catalytic converter theft on May 17, 2021 and commented to one of the arrestees, Welcome to Torrance.
Plaintiff was investigated for the comment and invoked his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA) and/or the Meyers-Milias Brown Act, including use of a representative of his choice.
Defendants ultimately concluded the investigation and gave plaintiff an educational reminder for misconduct based on the Welcome to Torrance comment.
Plaintiff arrested a suspect who was disturbing the peace on March 4, 2022.
During the arrest,
plaintiff used force against the suspect, who ultimately stabbed plaintiffs partner in the clavicle
area with a pen and struck plaintiff in the head.
Plaintiff was administratively investigated for his use of force during the arrest.
Defendant ultimately concluded that plaintiff should be given an educational reminder to be more thorough in his reports of use of force.
Plaintiff filed a personnel complaint against Chief Hart for inappropriate comments and social media posts on November 2, 2022.
Plaintiff alleges Torrance Police Department revived the Internal Affairs investigation against him after his complaint.
Plaintiff alleges defendants violated his rights under POBRA, including by failing to provide proper notice of the nature of the investigations, subjecting plaintiff to punitive action and/or threatening him with punitive action for exercising his rights under POBRA and placing comments adverse to his interest in his personnel file. Plaintiff also alleges that defendants committed whistleblower retaliation in response to his complaints about Chief Harts inappropriate comments and social media posts.
Special interrogatories
Defendant contends that Special Interrogatories, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 remain at issue because they do not implicate confidential peace officer personnel information and that plaintiffs Pitchess objections are without merit.
Defendant also argues that plaintiffs response to Nos. 60, 62, 64, 73, 84, 86, and 90 directing defendant to other documents is improper under CCP §2030.230 because the interrogatories do not necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from.
In the opposition, plaintiff contends that the discovery requests were improperly served because they were sent via email although the parties had not stipulated to email service.
Plaintiff also argues that the motion was filed untimely on April 2, 2024.
In reply, defendant contends that its discovery requests were properly electronically served pursuant to CRC Rule 2.251(c).
Moreover, defendant argues, the motion was timely filed on April 2, 2024 because April 1 was a court holiday.
The Court finds that the request was properly served and that the motion was timely filed. The Court also finds that plaintiffs objections lack merit, including based on Pitchess.
The remaining special interrogatories at issue do not implicate Pitchess for the reasons argued by defendant.
Further, plaintiffs responses under CCP §2030.230 are improper.
The motion is thus GRANTED.
Requests for production of documents
Defendant asserts that Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 remain at issue.
Defendant argues that as to the remaining requests, plaintiff has failed to state whether plaintiff possesses additional documents that do not constitute protected police officer personnel records and information and has failed to produce any such non-Pitchess record documents, in compliance with CCP §2031.240.
Under CCP §2031.240, (a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.
Defendant argues that even if Pitchess applies to any responsive peace officer personnel records, plaintiff still has the ability to either identify and produce any non-personnel records and information, or state he cannot comply because he has no records.
Further, defendant asserts, the City is entitled to obtain documents within plaintiffs possession, custody, or control, irrespective of whether the City may already possess or have access to them, citing to CCP §2031.010.
Defendant further argues that plaintiffs objections that certain defined terms (communication, relate, and refer) are overly broad and ambiguous are without merit because none of the Citys requests utilize the defined term communication and only Request Nos. 54-60 include refer or relate, and such requests are limited in scope.
In opposition, plaintiff argues that a Pitchess motion was and is required as the requests seek personnel files.
Plaintiff also argues that the requests were improperly served via email and that the motion was untimely filed.
The Court finds that the requests were properly served, and the motion was timely filed.
The Court also finds that plaintiffs responses do not comply with CCP §2031.240 and that plaintiffs objections lack merit as to non-Pitchess documents.
The motion is GRANTED.
Sanctions
Under CCP § 2023.030(a), [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
Under CCP § 2023.010, an example of the misuse of the discovery process is (d) Failing to respond or to submit to an authorized method of discovery.
Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
CCP § §2030.300(d), 2031.310(h).
Cal. Rules of Court, Rule 3.1348(a) states:
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.
The Court denies each partys request for sanctions.
ORDER
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
Defendant is ordered to give notice of ruling.
Ruling
TISGAR HAROUN VS HOCB RETAIL LLC, ET AL.
Jul 30, 2024 |
24STCV00648
Case Number:
24STCV00648
Hearing Date:
July 30, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
TISGAR HAROUN,
Plaintiff,
vs.
HOCB RETAIL LLC, HOUSE OF
CB USA, LLC, SIRENS DESIGN
LLC, EGYPTSIA NEVERS, and
DOES 1 through 100, inclusive,
Defendants.
CASE NO.:
24STCV00648
[TENTATIVE] ORDER RE:
MOTION TO COMPEL DEFENDANTS RESPONSES TO FORM INTERROGATORIES GENERAL AND EMPLOYMENT LAW (SET ONE), SPECIAL INTERROGATORIES (SET ONE), AND REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE); REQUEST FOR $1,050.00 IN MONETARY SANCTIONS
Date: July 30, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Plaintiff Tisgar Haroun (Plaintiff)
RESPONDING PARTY: Defendants HOCB Retail LLC, House of CB USA, LLC, and Sirens Design LLC (collectively, Defendants)
The Court has considered the moving papers and the declaration filed in response to the motion.
BACKGROUND
This case arises from an employment dispute.
On January 10, 2024, Plaintiff filed a complaint asserting various causes of action, including wrongful termination, discrimination and retaliation.
On May 21, 2024, Plaintiff filed a single motion (the Motion) to compel Defendants responses to the following four (4) sets of discovery served on Defendants: (1) Form Interrogatories General, Set One; (2) Form Interrogatories Employment Law, Set One; (3) Special Interrogatories, Set One; and (4) Request for Production of Documents, Set One (collectively Discovery Requests).
Plaintiff also seeks an award of monetary sanction in the amount of $1,050.
On July 8, 2024, Defendants counsel, Calvin House, submitted a declaration in response to Plaintiffs Motion (House Decl.).
DISCUSSION
Legal Standard
Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories.
(CCP § 2030.290, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product.
(
Id.
, § 2030.290, subd.
(a).)
The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond.
(
Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 906.)
When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand.
(CCP § 2031.300, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (
Id.
, § 2031.300, subd. (a).)
Here,
Plaintiff served Defendants with the Discovery Requests on February 19, 2024.
(Declaration of Levon Derkalousdian, Esq. (Derkalousdian Decl.), ¶ 2.)
As of May 17, 2024, Defendants have not provided responses to any of the Discovery Requests.
(Derkalousdian Decl., ¶ 8.)
Plaintiff now moves for an order compelling Defendants to serve responses to the Discovery Requests.
Defendants counsel submitted a declaration on July 8, 2024, stating that Defendant served Plaintiff with verified responses to the Discovery Requests on May 31, 2024, without objections, and attached said discovery responses.
(House Decl., ¶ 2, Exhs. 1-12.)
Accordingly, since verified responses, without objections, have now been served, the Motion is MOOT.
Monetary Sanctions
Nevertheless, the question of sanctions still remains before the Court. [P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].
(
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 407.)
Even if the untimely response does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses&the trial court retains the authority to hear the motion.
(
Id.
, at pp. 408-409.)
This rule gives an important incentive for parties to respond to discovery in a timely fashion.
(
Id.
, at p. 408.)
If the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions, the trial court may deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.
(
Id.
at p. 409; Cal. Rules of Court, rule 3.1348, subd. (a) [The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed].)
The court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2030.290, subd. (c).)
[T]he court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (
Id.
, § 2031.300, subd. (c).)
Here, the declaration submitted by Defendants counsel offers no justification for the delayed responses.
(House Decl.)
Thus, the Court finds that monetary sanctions are warranted.
Plaintiff requests monetary sanctions in the total amount of $1,050, representing two hours spent in preparing the Motion plus an anticipated one hour for preparing a reply and arguing the Motion, based on an hourly rate of $350.
(Derkalousdian Decl., ¶ 9.)
The Court finds that because no reply was prepared and the Motion itself is moot, although it was filed before responses were served, reasonable sanctions are in the amount of $700 for the two hours required to prepare the Motion.
Accordingly, Plaintiffs request for sanctions is granted in part, in the reasonable amount of $700.
Defendants and their counsel are jointly and severally liable for this amount, which is payable to Plaintiff within twenty days of the date of this order.
Improperly Combined Motions
The Court notes, however, that Plaintiff has impermissibly combined motions seeking relief for each discovery device.
A motion must be brought separately for each discovery method at issue.
(Govt. Code, § 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing]; The Rutter Group California Practice Guide: Civil Procedure Before Trial, Ch. 8F-7 [8:1136] [Motions to compel compliance with separate discovery requests ordinarily should be filed separately.].)
Plaintiff should have filed four separate motions, each with its own filing fee; instead, Plaintiff filed only one motion and paid one filing fee.
Therefore, Plaintiff is ordered to pay three additional $60 filing fees for a total of $180 as a condition to the granting of this Motion.
The Motion is MOOT; however, monetary sanctions are awarded in favor of Plaintiff in the total amount of $750, to be paid by Defendants and their counsel within 20 days of the date of this Order.
Plaintiff is ordered to pay $180 in previously unpaid filing fees to the Court within twenty days of the date of this order.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 30th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
PATRICIA J. ESPINOZA ROSALES VS M & M PROPERTY MGT, INC., A CALIFORNIA CORPORATION
Aug 01, 2024 |
21STCV25648
Case Number:
21STCV25648
Hearing Date:
August 1, 2024
Dept:
48
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
PATRICIA J. ESPINOZA ROSALES,
Plaintiff,
vs.
M & M PROPERTY MGT, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CASE NO.: 21STCV25648
[TENTATIVE] ORDER GRANTING MOTION TO BE RELIEVED AS COUNSEL
Dept. 48
8:30 a.m.
August 1, 2024
Jasmine J. Badawi, counsel of record for Plaintiff/Cross-Defendant Patricia J. Espinoza Rosales, seeks to be relieved as counsel.
Counsels declaration states that there has been a breakdown in the attorney-client relationship.
No party opposed the motion.
Absent a showing of resulting prejudice, an attorneys request for withdrawal should be granted.
(
People v. Prince
(1968) 268 Cal.App.2d 398, 406.)
Counsels motion complies with California Rules of Court, rule 3.1362.
Trial is not until January 21, 2025, and there is no prejudice to Plaintiff/Cross-Defendant.
The unopposed motion to be relieved is GRANTED and effective upon filing a proof of service showing service of the signed Form MC-053 order and this order on Patricia J. Espinoza Rosales and all parties who have appeared.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.
If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.
Dated this 1st day of August 2024
Hon. Thomas D. Long
Judge of the Superior Court
Ruling
GIAVANNA PAPASAVVAS VS 1016 INDUSTRIES INC; A FLORIDA CORPORATION, ET AL.
Jul 29, 2024 |
22STCV36344
Case Number:
22STCV36344
Hearing Date:
July 29, 2024
Dept:
68 Dept. 68
Date: 7-29-24
Case # 22STCV36344
Trial Date: 11-12-24 c/f 10-21-24 c/f 8and rour-19-24 c/f 7-22-24 c/f 6-3-24
FURTHER DOCUMENTS/ADMISSIONS/SPECIAL INTERROGATIRES
MOVING PARTY: Defendant, 1016 Industries
RESPONDING PARTY: Plaintiff, Giavanna Papasavvas
RELIEF REQUESTED
Motions to Compel Further Responses
SUMMARY OF ACTION
Plaintiff VAV Plastics, Inc. manufactures plastic bottles. Plaintiff also offers custom design services. Plaintiff alleges Defendant Arminak Solutions dba KBL Cosmetics was a customer. Between August 3, 2020 and October 22, 2020, Defendant ordered $2,540,000 in manufactured products. The order also required the development of special molds, plus pallets for delivery, which Plaintiff alleges was separately invoiced for $11,000 and $1,036 ($12,306 total).
Plaintiff alleges most of the product ordered has been delivered, but Defendant refuse to take the remaining portion of the order and ordered the cessation of future production.
Plaintiff alleges a remaining balance due of $4342,540.21. Finally, Plaintiff also alleges an entitlement to reimbursement for special equipment acquisitions totaling $54,337.91. The total sum for the bottles, molds and pallets, and equipment amounts to $408,914.12.
On February 17, 2021, Plaintiff filed its complaint for Breach of Oral Contract, and Common Counts. On June 4, 2020, Defendant answered and filed a cross-complaint for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, Declaratory Relief, Breach of Express Warranty, Breach of Implied Warranty of Merchantability, Breach of Implied Warranty of Fitness for a Particular Purpose, and Negligent Interference with Prospective Economic Advantage. On August 2, 2021, Cross-Complainants filed a first amended cross-complaint for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, Declaratory Relief, Breach of Express Warranty, Breach of Implied Warranty of Merchantability, Breach of Implied Warranty of Fitness for a Particular Purpose, and Negligent Interference with Prospective Economic Advantage
RULING
:
OSC re: Discovery Referee.
Defendant, 1016 Industries
scheduled four concurrent motions to compel further responses. While the court specially set the subject motions, it appears the parties continue to file more and more motions to compel further responses even well after the trial date, and ask the court to adjust the parties latest developments, including the latest rejected stipulation. A review of the history of the parties discovery disagreements shows multiple previously filed motions, ongoing disputes, and at least four prior trial continuances, at least in part, presumably due to said discovery disputes.
The court favors robust discovery thereby allowing the best prosecution and defense during the adjudication of all actions presented. The court however also declines to schedule Independent Discovery Conferences due to an already impacted calendar. Any and all law disputes must be addressed by law and motion with applicable new motion limits instituted. Given the reviewed history of the disputes, and voluminous and complexity level of the disputes, the Court hereby sets this matter for an OSC re referral to a discovery referee.
When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon. (Code Civ. Proc., § 639, subd. (a)(5).) Appointment requires a court finding of exceptional circumstances. (Code Civ. Proc., § 639, subd. (d)(2).) Absent agreement of all parties,
courts may not make blanket referrals, except in the unusual case where a majority of factors favor reference, including: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming. (
Taggares v. Superior Court
(1998) 62 Cal. App. 4th 94, 105.) Where one or more of the above factors unduly impact the courts time and/or limited resources, the court is clearly within its discretion to make an appropriate reference. (Id. at 106.)
Again, the court understands the prior use and perhaps reliance on the IDC system. The court also faces impacts from the recent ransomware attack and ongoing impacted calendars preceding the operations shut down now further exacerbating the situation. The court is also mindful of the November 12, 2024, trial date.
The court therefore sets an OSC re: Discovery Referee for August 16, 2024 at 8:30 a.m., with the purpose of allowing the parties to consider their options while still allowing for potential appointment well before the trial date. If the parties wish to stipulate in advance of the hearing, the court invites such an agreement. The parties may consider criteria such as costs of the respective referee, allocation of costs for any discovery involving third parties, authority to award sanctions and/or attorneys by the referee, availability, etc.
The court can and has set expedited referee referrals in the past, and therefore strongly encourages the parties to check availability. The court will also accelerate the referee report review in order to facilitate resolution of the claims.
If the parties refuse to stipulate, the parties may submit any opposition to the appointment no later than nine (9) court days before the August 16, 2024 hearing datedue date of August 5, 2024. Any briefs shall be no more than five (5) pages of points and authorities, plus any declarations. The court will issue a tentative ruling following a review of the briefs, if applicable. The four motions
are placed off-calendar pending the OSC and subject to either presentation before the referee or reset on the court calendar.
Defendant to give notice.
Ruling
ELIZABETH SHUAI WONG VS FLIPFIT, ET AL.
Aug 09, 2024 |
23STCV30186
Case Number:
23STCV30186
Hearing Date:
August 9, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
ELIZABETH SHUAI WONG
,
Plaintiff,
vs.
FLIPFIT, f.k.a. HUMANS, INC., a Delaware
corporation, NOORULDEEN ALAARIF,
a.k.a. NOOR AGHA, an individual, and
DOES 1 to 100, inclusive
,
Defendants.
CASE NO.:
23STCV30186
[TENTATIVE] ORDER RE:
MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIESS, SET ONE
Date: August 9, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Plaintiff
Elizabeth Shuai Wong
(Plaintiff)
RESPONDING PARTY: Defendant
Flipfit, fka Humans, Inc. (Defendant)
The Court has considered the moving, opposition and reply papers.
BACKGROUND
This is a representative action filed by Plaintiff on December 11, 2023, seeking recovery of civil penalties under the Private Attorneys General Act of 2004, California Labor Code §2698,
et seq
. (PAGA), for alleged Labor Code violations of:
failure to pay minimum wage, failure to pay overtime wages, failure to provide all required meal periods, failure to authorize or permit all required rest periods, failure to pay all earned wages each pay period, failure to provide accurate wage statements, failure to pay vested vacation wages, failure to reimburse necessary business expenditures, failure to pay all wages due upon separation of employment, failure to maintain an effective Injury and Illness Prevention Program and retaliation for use of Covid-19 supplemental sick pay.
On April 22, 2024, Plaintiff filed a Motion to Compel Defendants Responses to Plaintiffs Requests for Production, Set One (the RFPs Motion), and a Motion to Compel Defendants Responses to Plaintiffs Special Interrogatories, Set One (the SIs Motion) (collectively, the Motions).
Defendant filed a consolidated opposition to the Motions on July 9, 2024, and Plaintiff filed a reply on July 15, 2024.
DISCUSSION
SIs Motion
Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories.
(CCP § 2030.290, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product.
(
Id.
, § 2030.290, subd.
(a).)
The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond.
(
Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 906.)
Here, Plaintiff served Defendant with Special Interrogatories, Set One (SIs) on January 30, 2024.
(Declaration of Leonard H. Sansanowicz in Support of SIs Motion, ¶ 3.)
Defendant had not served responses to the SIs as of the date of filing of the SIs Motion on April 22, 2024.
(
Id.
, ¶ 11.)
On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections.
(Declaration of Matthew Theriault (Theriault Decl.), ¶ 10.)
Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the SIs on June 7, 2024.
(Supplemental Declaration of Leonard H. Sansanowicz in Support of Plaintiffs Reply (Sansanowicz Supp. Decl.), ¶ 22.)
Accordingly, since responses to the SIs, without objections, have now been served, the SIs Motion is MOOT.
To the extent that Plaintiff contends that the responses are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses.
RFPs Motion
When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand.
(CCP § 2031.300, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (
Id.
, § 2031.300, subd. (a).)
Here, Plaintiff served Defendant with Requests for Production of Documents, Set One (RFPs) on January 30, 2024.
(Declaration of Leonard H. Sansanowicz in Support of RFPs Motion, ¶ 3.)
Defendant had not served responses to the RFPs as of the date of filing of the RFPs Motion on April 22, 2024.
(
Id.
, ¶ 11.)
On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections.
(Theriault Decl., ¶ 10.)
Additionally, on July 9, 2024, Defendant produced documents.
(
Id.
)
Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the RFPs on June 7, 2024.
(Sansanowicz Supp. Decl., ¶ 22.)
Accordingly, since responses to the RFPs, without objections, have now been served, and documents have been produced, the RFPs Motion is MOOT.
To the extent that Plaintiff contends that the responses and documents produced are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses.
Monetary Sanctions
Nevertheless, the question of sanctions still remains before the Court. [P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].
(
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 407.)
Even if the untimely response does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses&the trial court retains the authority to hear the motion.
(
Id.
, at pp. 408-409.)
This rule gives an important incentive for parties to respond to discovery in a timely fashion.
(
Id.
, at p. 408.)
If the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions, the trial court may deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.
(
Id.
at p. 409; Cal. Rules of Court, rule 3.1348, subd. (a) [The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed].)
The court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2030.290, subd. (c).)
[T]he court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (
Id.
, § 2031.300, subd. (c).)
In this case, Defendant asserts that the delayed responses were caused by unexpected medical issues experienced by the previous attorney handling the case. The Court also acknowledges that there have been multiple changes in the counsel representing Defendant. Furthermore, Plaintiff agreed to an extension for Defendant to provide responses by June 7, 2024, and Defendant complied with this deadline.
(Sansanowicz Supp. Decl., ¶¶ 17-22;
Theriault Decl., ¶¶ 8-10.)
Thus, the Court finds that, under the circumstances, there is substantial justification for the delayed responses and that monetary sanctions are not warranted.
Accordingly, no sanctions are imposed.
RULING
The Motions are DENIED as moot.
The requests for monetary sanctions are also DENIED.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 9
th
day of August 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Preview
1 CENTURION TRIAL ATTORNEYS, APC Robert A. Waller, Jr. (SBN 169604) 2 robert@centurionta.com Ryan Stygar (SBN 332764) 3 ryan@centurionta.com 8880 Rio San Diego Dr., Ste. 800 Electronically Received 12/27/2023 04:02 PM 4 San Diego, CA 92108 5 Telephone: (888) 225-5792 Facsimile: (760) 753-3206 6 Attorneys for Plaintiff DAISY GONZALEZ, individually 7 and on behalf of all others similarly situated 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF LOS ANGELES 10 11 DAISY GONZALEZ, individually and on Case No.: 23STCV26886 12 behalf of all others similarly situated, 13 Plaintiff, FIRST AMENDED CLASS ACTION vs. COMPLAINT: 14 15 ADVENT GLOBAL SOLUTIONS, INC., a 1. Violation of California Labor Code New Jersey Corporation; and DOES 1 through § 2802 [Unreimbursed Business- 16 50, inclusive, Related Expenses]; 17 Defendants. 2. Violation of California Business & Professions Code § 17200, et seq. 18 (Unlawful Business Practices); and 3. Violation of California Labor Code 19 §2698, et seq. (PAGA CLAIMS) 20 21 DEMAND FOR JURY TRIAL 22 23 24 Plaintiff DAISY GONZALEZ (“Plaintiff” or “Ms. Gonzalez”), individually, and on 25 behalf of all other similarly situated and/or aggrieved employees of Defendant ADVENT 26 GLOBAL SOLUTIONS, INC., a New Jersey Corporation; and DOES 1 through 50, inclusive, 27 and/or such other affiliated entities, allege as follows: 28 /// FIRST AMENDED CLASS ACTION COMPLAINT - 1 1 INTRODUCTION 1. This is a class action PAGA representative action brought against Defendant 2 ADVENT GLOBAL SOLUTIONS, INC., a New Jersey Corporation, which is organized, 3 existing, and doing business in California under and by virtue of the laws of the State of California 4 (Secretary of State entity number 3275050); and those fictitiously named Defendants whose 5 identity is presently unknown to Plaintiff and which are identified herein as DOES 1-50 (“DOE 6 Defendants”). Plaintiff brings this action individually and on behalf of all other similarly situated 7 and aggrieved employees who worked for Defendant, including DOE Defendants, in the State of 8 California. 9 2. Plaintiff, on behalf of herself and all Class Members, brings this action for violations of California Labor Code § 2802, based on Defendant’s, including DOE Defendants, 10 failure and/or refusal to reimburse Plaintiff, and all similarly situated and aggrieved employees, 11 for necessary business-related expenses, including internet access and internet service provider 12 expenses, as well as cellular phone data charges, which they were required to have and maintain 13 during their employment when working from home. Plaintiffs seek compensation for 14 unreimbursed business-related expenses, applicable penalties, equitable relief, interest, and 15 reasonable attorney’s fees and costs. 16 3. Plaintiff, individually and on behalf of all proposed Class Members, brings this 17 action pursuant to California Business and Professions Code §§ 17200-17208, for Defendant’s, including DOE Defendants, unlawful business practices as alleged, and seeks injunctive relief, 18 restitution, and disgorgement of all benefits obtained by Defendant, including DOE Defendants, 19 by failing to reimburse Plaintiff, and all other similarly situated and aggrieved employees, for 20 business-related expenses as herein alleged. 21 JURISDICTION AND VENUE 22 4. This class and state enforcement action is brought pursuant to California Code of 23 Civil Procedure § 382 and California Labor Code §§ 2698 et seq. (“PAGA”) to recover monetary 24 damages, civil penalties, and any other available relief on behalf of Plaintiff, the State of 25 California (PAGA penalties), and other current and former employees who worked for Defendant, 26 including DOE Defendants, in California; and, against whom one or more violations of any provision of the California Labor Code were committed (“aggrieved employees”), as set forth in 27 this Complaint. 28 FIRST AMENDED CLASS ACTION COMPLAINT - 2 1 5. The monetary damages, penalties, restitution, and attorney’s fees and costs sought by Plaintiff are within the unlimited jurisdiction limits of the California Superior Court. 2 6. This Court has jurisdiction over all Defendants, including DOE Defendants, 3 because Defendant conducts business in California; have established sufficient minimum contacts 4 in California; and otherwise intentionally avail themselves of the California market so as to render 5 the exercise of jurisdiction over them by the California courts consistent with traditional notions 6 of fair play and substantial justice. This case falls within the statutory exceptions to “minimal 7 diversity” jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(4). Upon 8 information and belief, two-thirds or more of the class members and Defendant, including DOE 9 Defendants, are citizens of California and/or (a) two-thirds of the class members and Defendant, including DOE Defendants, are citizens of California; (b) the alleged wage and hour violations 10 occurred in California; (c) significant relief is being sought against Defendant, including DOE 11 Defendants, whose violations of California wage and hour laws form a significant basis for 12 Plaintiffs’ claims; and (d) no other class action has been filed within the past three (3) years on 13 behalf of the same proposed class against Defendant, including DOE Defendants, asserting the 14 same or similar factual allegations. 15 7. Venue is proper in this Court because Defendant, including DOE Defendants, 16 employ persons in this county, employed Plaintiff in this county, and thus a substantial portion of 17 the transactions and occurrences related to this action occurred in this county [California Code of Civil Procedure § 395]. 18 THE PARTIES 19 8. Plaintiff DAISY GONZALEZ is a resident of the City of Los Angeles, County of 20 Los Angeles, in the State of California. ADVENT GLOBAL SOLUTIONS, INC. employed, and 21 during all relevant times has employed, Ms. Gonzalez as a full-time Loan Operations employee 22 in Los Angeles, California. Ms. Gonzalez and other aggrieved employees have worked remotely 23 from their homes since at least November 2021. Ms. Gonzalez earned $50.00 per hour. Ms. 24 Gonzalez was primarily engaged in loan operations. 25 9. Defendant ADVENT GLOBAL SOLUTIONS, INC., was and is a New Jersey 26 Corporation with its corporate headquarters and principal place of business located in Texas at 12777 Jones Road, Suite 445, Houston, TX 77070. At all times hereinafter mentioned, Defendant 27 28 FIRST AMENDED CLASS ACTION COMPLAINT - 3 1 ADVENT GLOBAL SOLUTIONS, INC. was, and is, an employer with employees engaged throughout the State of California. 2 10. Defendant ADVENT GLOBAL SOLUTIONS, INC. is hereinafter referred to as 3 “ADVENT” for ease of reference. 4 11. Plaintiff is unaware of the true names or capacities of the Defendant sued herein 5 under the fictitious names DOES 1 through 50 but will seek leave of this Court to amend the 6 Complaint and serve such fictitiously named Defendant once their names and capacities become 7 known. 8 12. Plaintiff is informed and believes, and thereon alleges, that DOES 1 through 50 9 are partners, agents, owners, subsidiaries, shareholders, managers, and/or employees of ADVENT at all relevant times and are in some way responsible for the actions and conduct of 10 Defendant as alleged herein. 11 13. Plaintiff is informed and believes, and thereon alleges, that each and all of the acts 12 and omissions alleged herein were performed by, or is attributable to Defendant ADVENT and/or 13 DOES 1 through 50, acting as the agent, employee, alter ego and/or joint venturer of and/or 14 working in concert with each of the other co-Defendant and was acting within the course and 15 scope of such agency, employment, joint venture, or concerted activity with legal authority to act 16 on the others’ behalf. The acts of any and all Defendants were in accordance with, and represent, 17 the official policy of Defendant. 14. At all relevant times, Defendant, by and through its managing agents, officers, 18 directors, supervisors, and/or managers ratified each and every act or omission complained of 19 herein. At all relevant times, Defendant aided and abetted the acts and omissions of each and all 20 the other Defendants in proximately causing the damages herein alleged. 21 15. Plaintiff is informed and believes, and thereon alleges, that Defendant is in some 22 manner intentionally, negligently, and/or otherwise responsible for the acts, omissions, 23 occurrences, and/or transactions alleged herein. 24 16. Plaintiff filed with the State of California Labor Workforce Development Agency 25 (LWDA), and served ADVENT GLOBAL SOLUTIONS, INC. via certified return receipt, a 26 notice of claims pursuant to PAGA which included the claims asserted herein. The PAGA claim was assigned number LWDA-CM-988075-23. Sixty-five (65) days have elapsed with the LWDA 27 taking no action on Plaintiffs’ claims and they therefore bring the Private Attorney General Act 28 FIRST AMENDED CLASS ACTION COMPLAINT - 4 1 (PAGA) claims asserted herein as an agent or proxy of the State of California who is the real party in interest for PAGA claims asserted herein. 2 GENERAL ALLEGATIONS 3 17. Beginning in or around November 2021, at the peak of the COVID-19 pandemic, 4 Plaintiff was required by Defendant to work full-time from her home. At all times, Defendant 5 required Plaintiff, and all other similarly situated employees, to have and maintain reliable 6 internet service and access from their homes because of Plaintiff’s job duties and functions. 7 18. As a Loan Operations employee working primarily from her home, Ms. Gonzalez 8 worked at least 8 hours per day, 5 days per week. During work hours, Ms. Gonzalez was required 9 to be logged into the ADVENT internet-based Client Relationship Management system (CRM) and/or Project Management System (PMS). 10 19. As a result of Defendant’s requirement that Plaintiff, and all others similarly 11 situated employees, maintain reliable internet from their homes, Plaintiff was required to 12 subscribe to an internet service provider and pay for the service on a monthly basis. 13 20. ADVENT’s CRM required Ms. Gonzalez, and other aggrieved employees, to self- 14 report time and work activity. Because Ms. Gonzalez, and all similarly aggrieved employees, 15 were and are required to work from home and input hours worked into ADVENT’s internet-based 16 CRM, they are all required to have, and use, their own internet service provider and/or internet 17 connection in order to perform their work for ADVENT. Ms. Gonzalez, and all other aggrieved employees, received no reimbursement for the internet usage from ADVENT. 18 21. At no time did Defendant reimburse Plaintiff, or any other similarly situated or 19 aggrieved employees, for these necessary business-related expenses as required by California 20 Labor Code § 2802. 21 22. ADVENT has impermissibly passed its operating expenses onto Ms. Gonzalez, 22 and similarly aggrieved employees, by failing to reimburse them for the proportionate cost 23 associated with having required internet service in order to fulfill their work-related duties and 24 responsibilities. [See, e.g., Cochran v. Schwan’s Home Service, Inc. (2014) 228 Cal.App.4th 1137, 25 1140 (“We hold that when employees must use their personal cell phones for work-related calls, 26 Labor Code section 2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a 27 reasonable percentage of their cell phone bills.” (fn. 1 omitted.)] 28 FIRST AMENDED CLASS ACTION COMPLAINT - 5 1 CLASS ACTION ALLEGATIONS 23. Plaintiff brings this action individually, as well as on behalf of each and all other 2 persons similarly situated, and thus seeks class certification under California Code of Civil 3 Procedure § 382. 4 24. All claims alleged herein arise under California law for which Plaintiff seeks relief 5 authorized by California law. 6 25. Plaintiff’s proposed class consists of, and is defined, as follows: 7 “All persons who are or were employed by Defendant who incurred business- related expenses that were not reimbursed by Defendant, including internet service 8 and cell phone data charges.” 9 26. Members of the Class are referred to herein as “class members.” 10 27. Plaintiff reserves the right to redefine the Class and to add subclass(es) as 11 appropriate based on further investigation, discovery, and specific theories of liability. 12 28. There are common questions of law and fact as to all class members that predominate over questions affecting only individual members, including, but not limited to, the 13 following: 14 (a) Whether Defendant failed to reimburse Plaintiff, and class members, for 15 necessary business-related expenses in violation of California Labor Code 16 § 2802; 17 (b) Whether Defendant engaged in unlawful business practices in violation 18 of California Business & Professions Code §§ 17200, et seq.; and 19 (c) The appropriate amount of damages, restitution, or monetary penalties 20 resulting from Defendant’s violations of California law. 29. There is a well-defined community of interest in the litigation and the class 21 members are readily ascertainable: 22 (a) Numerosity: The class members are so numerous that joinder of all 23 members would be unfeasible and impractical. The membership of the 24 entire class is unknown to Plaintiff at this time; however, the class is 25 estimated to be greater than several hundred individuals and the identity of 26 such member is readily ascertainable by inspection of Defendant’s 27 employment records. 28 FIRST AMENDED CLASS ACTION COMPLAINT - 6 1 (b) Typicality: Plaintiff has a well-defined community of interest, and Plaintiff’s claims (or defenses, if any) are typical of all class members as 2 demonstrated herein. 3 (c) Adequacy: Plaintiff is qualified to, and will, fairly and adequately protect 4 the interests of each class member with whom she has a well-defined 5 community of interest and typicality of claims, as demonstrated herein. 6 Plaintiff acknowledges that she has an obligation to make known to the 7 Court any relationship, conflicts, or differences with any class member. 8 Plaintiff’s attorneys, the proposed class counsel, are versed in the rules 9 governing class action discovery, certification, and settlement. (d) Superiority: The nature of this action makes the use of class action 10 adjudication superior to other methods. A class action will achieve 11 economies of time, effort, and expense as compared with separate lawsuits, 12 and will avoid inconsistent outcomes because the same issues can be 13 adjudicated in the same manner and at the same time for the entire class. 14 (e) Public Policy Considerations: Employers in the State of California violate 15 employment and labor laws every day. Current employees are often afraid 16 to assert their rights out of fear of direct or indirect retaliation. Former 17 employees are fearful of bringing actions because they believe their former employers might damage their future endeavors through negative 18 references and/or other means. Class actions provide the class members 19 who are not named in the complaint with a type of anonymity that allows 20 for the vindication of their rights while simultaneously protecting their 21 privacy. 22 FIRST CAUSE OF ACTION 23 Violation of California Labor Code § 2802 [Unreimbursed Business Expenses] 24 (Against All Defendant) 25 30. Plaintiff incorporates by reference and re-alleges as if fully stated herein each and 26 every allegation set forth above. 27 28 FIRST AMENDED CLASS ACTION COMPLAINT - 7 1 31. California Labor Code § 2802 requires that “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct 2 consequence of the discharge of his or her duties, or of his or her obedience to the directions of the 3 employer, even though unlawful, unless the employee, at the time of obeying the directions, 4 believed them to be unlawful.” 5 32. Plaintiff alleges for herself, and all others similarly situated and aggrieved, that she 6 incurred necessary business-related expenses at the direction of their employer, Defendant 7 ADVENT, as a direct consequence of the discharge of their duties and responsibilities. Plaintiff 8 incurred business-related expenses for internet service. 9 33. Defendant ADVENT has refused and/or failed to reimburse or compensate Plaintiff, and all other similarly situated or aggrieved employees, for these necessary business-related 10 expenses which should be borne by Defendant as the operator of the business and for whose benefit 11 the expenses were incurred by Plaintiff, and all others similarly situated or aggrieved. 12 34. As a direct and proximate result of Defendant’s actions as herein alleged, Plaintiff, 13 and all others similarly situated and aggrieved, have incurred monetary damages in an amount 14 according to proof at trial. 15 35. As a further direct and proximate result of Defendant’s actions as alleged, Plaintiff, 16 and all others similarly situated and aggrieved, are entitled to interest on the unreimbursed 17 expenses at the same rate as judgments in civil actions and said interest shall accrue from the date on which the employee incurred the necessary expenditure or loss pursuant to California Labor 18 Code § 2802(b). 19 36. As a further direct and proximate result of Defendant’s actions as alleged, Plaintiff 20 has retained counsel and legal professionals to prosecute this action and is entitled to recover all 21 reasonable costs, including, but not limited to, attorneys fees incurred enforcing the rights granted 22 by this section in an amount according to proof pursuant to California Labor Code § 2802(c). 23 SECOND CAUSE OF ACTION 24 Violation of California Business & Professions Code §§ 17200, et seq. [Unlawful Business Practice] 25 (Against All Defendant) 26 37. Plaintiff incorporates by reference and re-alleges as if fully stated herein each and 27 every allegation set forth above. 28 FIRST AMENDED CLASS ACTION COMPLAINT - 8 1 38. Defendant’s failure to reimburse Plaintiff, and all other similarly situated or aggrieved employees, for necessary business-related expenses as herein alleged, constitutes a 2 violation of California Labor Code § 2802 and is therefore an unlawful business practice in 3 violation of California Business & Professions Code § 17200. 4 39. Plaintiff, and all other similarly situated and aggrieved employees, has incurred 5 actual harm and losses in that she parted with her money for necessary business-related expenses 6 which have not been reimbursed by Defendant. 7 40. Plaintiff, and all other similarly situated and aggrieved employees, is entitled to 8 restitution of monies which she, and all other similarly situated and aggrieved employees, parted 9 with by having to pay from their own pockets for internet service. 41. Plaintiff, and all other similarly situated and aggrieved employees, is entitled to 10 disgorgement of the illicit and unlawful monetary gains realized by Defendant through their failure 11 and/or refusal to reimburse employees such as Plaintiff, and all other similarly situated and 12 aggrieved employees, for necessary business-related expenses as required by Defendant all in an 13 amount according to proof. 14 42. Plaintiff, and all other similarly situated and aggrieved employees, are similarly 15 entitled to an injunction for specific performance under California Business and Professions Code 16 § 17202, and other equitable relief against such unlawful practices in order to prevent future losses 17 to employees such as Plaintiff, and all others similarly situated or aggrieved, for which there is no adequate remedy at law, and to avoid a multiplicity of lawsuits. Plaintiff brings this cause 18 individually, and as a member of the general public, as a representative of all others subject to 19 Defendant’s unlawful acts and practices. 20 43. This cause of action is brought as a cumulative remedy and is intended as an 21 alternative remedy for restitution for Plaintiff, and each Plaintiff Class and/or Subclass Member, 22 for up to the four-year period before the filing of this Complaint, and as the primary remedy for 23 the Plaintiff Class and Subclasses during the fourth year before the filing of this Complaint 24 pursuant to California Business & Professions Code § 17205. 25 44. The illegal conduct alleged is continuing and there is no indication Defendant will 26 discontinue such activity. Plaintiff, and all other similarly situated and aggrieved employees, allege, if Defendant are not enjoined from the conduct set forth in this Complaint, they will continue to 27 28 FIRST AMENDED CLASS ACTION COMPLAINT - 9 1 fail to reimburse employees who incur and pay for necessary business-related expenses for such things as internet service and access, printers, printer ink, and paper. 2 45. Defendant’s conduct, as alleged herein, has been, and continues to be, unfair, 3 unlawful and harmful to Plaintiff, class members, and to the general public. Plaintiff, and all other 4 similarly situated and aggrieved employees, has suffered injury in fact and has lost money as a 5 result of Defendant’s unlawful business practices. Plaintiff, and all other similarly situated and 6 aggrieved employees, seek to enforce important rights affecting the public interest within the 7 meaning of California Code of Civil Procedure § 1021.5 and is therefore entitled to an award of 8 reasonable attorney’s fees in an amount according to proof. 9 THIRD CAUSE OF ACTION 10 Violation of California Labor Code § 2698, et seq. [California Private Attorney General Act Claims] 11 (Against All Defendants) 12 46. Plaintiff incorporates by reference and re-alleges as if fully stated herein each and 13 every allegation set forth above. 14 47. Plaintiff brings this cause of action for violation of the California Private Attorney 15 General Act (PAGA) as an agent or proxy for the State of California who is the real party in interest 16 when prosecuting PAGA actions. 17 48. Plaintiff complied with and exhausted the pre-filing administrative process required 18 to bring this claim as herein alleged. 19 49. Plaintiff brings this PAGA claim for Defendant ADVENT’s violations of 20 California Labor Code §2802 for failure to indemnify and/or reimburse Plaintiffs and similarly 21 aggrieved employees for reasonable and necessary business expenses, including but not limited to 22 home internet expenses. 23 50. Plaintiff seeks to recover the penalties enumerated in California Labor Code §§ 24 2698, 2699, and 2802 and for the State of California, themselves, and all other aggrieved 25 employees in an amount according to proof at trial. 26 51. As a proximate result of Defendant ADVENT’s actions and conduct Plaintiff has 27 hired attorneys and other legal professional to prosecute this action. Plaintiff is therefore entitled 28 FIRST AMENDED CLASS ACTION COMPLAINT - 10 1 to recovery of reasonable attorney fees in an amount according to proof pursuant to California 2 Labor Code §2699(g)(1). 3 4 PRAYER FOR RELIEF Plaintiff, individually and on behalf of all others similarly situated or aggrieved, prays for 5 relief and judgment against Defendant, and each of them, as follows: 6 1. Determine this action may be maintained as a class action with Plaintiff as Class 7 Representative and Plaintiff’s counsel as class counsel; 8 2. Determine this action be maintained as a representative action pursuant to the 9 California Private Attorney General Act (PAGA); 10 3. For monetary damages in an amount according to proof; 11 4. For restitution in an amount according to proof; 12 5. For applicable penalties in an amount according to proof; 6. For an award of reasonable attorney fees pursuant to California Labor Code 13 §2699(g)(1), and/or C.C.P. §1021.5 in an amount according to proof; 14 7. For attorney’s fees in an amount according to proof pursuant to California Labor 15 Code § 2802, and California Code of Civil Procedure § 1021.5; 16 8. That Defendant, and each of them, be found to have engaged in unfair competition 17 in violation of California Business and Professions Code § 17200, and thereon 18 enjoined from engaging in further unlawful conduct; 19 9. For prejudgment interest according to proof; and 20 10. Such other and additional and/or equitable relief as this court deems fair, just and proper. 21 JURY DEMAND 22 Plaintiff, and all other similarly situated and aggrieved employees, hereby demand a jury 23 trial of this matter on all claims for which a jury trial is available. 24 /// 25 /// 26 /// 27 /// 28 /// FIRST AMENDED CLASS ACTION COMPLAINT - 11 1 2 Dated: December 27, 2023 /s/Ryan Stygar 3 4 /s/Robert A. Waller Jr., 5 Attorneys for Plaintiff DAISY GONZALEZ, individually and on behalf of all others similarly 6 situated. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED CLASS ACTION COMPLAINT - 12 1 PROOF OF SERVICE 2 I am employed in the County of San Diego, State of California. I am over the age of 18 years and not a party to the within action; my business address is 8880 Rio San Diego Drive, Suite 3 800, San Diego, California 92108. 4 On December 27, 2023, I served the foregoing document described as FIRST AMENDED 5 CLASS ACTION COMPLAINT on the interested parties in this action by: 6 Joseph F. Desiderio Attorneys for Defendant 7 joseph.desiderio@jacksonlewis.com James P. Carter 8 james.carter@jacksonlewis.com Kimberly Ferguson 9 kimberly.ferguson@jacksonlewis.com Jackson Lewis P.C. 10 200 Spectrum Center Dr., Suite 500 11 Irvine, CA 92618 12 13 ______ BY MAIL - I am readily familiar with the firm's business practice of collection 14 and processing of correspondence for mailing with the United States Postal Service and said correspondence is deposited with the United States Postal 15 Service the same day. ______ BY PERSONAL SERVICE - I caused such envelope to be delivered by a server 16 employed by Precedent Legal Services. 17 ______ BY FACSIMILE - I faxed said document, to the office(s) of the addressee(s) shown above, and the transmission was reported as complete and without error. 18 __X__ BY ELECTRONIC SERVICE: Pursuant to California Code of Civil Procedure 19 §1010.6(C)(2) and California Rules of Court, Rule 2.250, I also caused such documents to be served electronically at the e-mail addresses stated on the 20 attached service list. Such email transmissions were complete with no errors reported. Sending email: sirena@centurionta.com. 21 __X__ STATE - I declare under penalty of perjury under the laws of the State of 22 California that the foregoing is true and correct. 23 Executed on December 27, 2023 at Lake Elsinore, California. 24 Sirena Ortega 25 Sirena Ortega Paralegal 26 27 28 PROOF OF SERVICE