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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10
11
12 ALEXANDER CHARLES and HENRY Case No. 19CV347249
MULAK, as individuals,
13 ORDER RE: MOTION FOR STAY
Plaintiffs,
14
vs.
15
VARSITY TUTORS LLC,
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Defendant.
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18 The above-entitled matter came on for hearing on Friday, August 7, 2020, at 9:00 a.m. in
19 Department 3, the Honorable Patricia M. Lucas presiding. The court reviewed and considered
20 the written submissions filed by the parties and issued a tentative ruling on Thursday, August 6,
21 2020. No party contested the tentative ruling; therefore, the court orders the tentative ruling be
22 adopted as the order of the court, as follows:
25 I. INTRODUCTION
24 According to the allegations of the First Amended Complaint (“FAC”), filed on May 30,
25 2019, defendant Varsity Tutors LLC (“Defendant”) sells and provides private tutoring services.
26 (FAC, § 1.) At least 40,000 tutors work for Defendant nationwide. (/d. at 10.) Plaintiff Henry
27 Mulak (“Mulak”) was employed by Defendant as a tutor for five years. (/d. at § 3.) Plaintiff
28
ORDER RE: MOTION FOR STAY
Alexander Charles (“Charles”) has been employed by Defendant as a tutor since May 2018. (/d.
at 4.)
Plaintiffs Mulak and Charles (collectively, “Plaintiffs”) allege that Defendant does not
compensate them for time traveling, preparing, communicating with students and parents, or
scheduling and bookkeeping. (FAC, §j 17.) Defendant does not pay overtime and does not allow
for meal and rest breaks. (/d. at {| 17-18.) Defendant does not provide itemized wage
statements. (/d. at§ 20.) Defendant classifies its tutors as independent contractors, in spite of its
control over its tutors. (/d. at § 21.)
The FAC sets forth causes of action for the following: (1) declaratory relief; and
10 (2) violations of the Private Attorneys General Act. Now before the court is Defendant’s motion
11 to stay the action.
12 IL. DISCUSSION
13 Defendant argues that this case should be stayed because of the existence of an arbitratior
14 proceeding with overlapping liability theories brought by a different individual. Specifically,
15 Defendant’s motion is premised on the asserted fact that another independent contractor, Aziz
16 Tazi, who utilized Defendant’s platform, “instituted an individual arbitration claim against
17 Defendant before the American Arbitration Association in April of 2020 asserting various
18 California Labor Code claims all of which stem from his core contention that Varsity
19 misclassified him as an independent contractor.” (Defendant Varsity Tutors LLC’s Notice of
20 Motion and Motion for an Order Staying Action; Memorandum of Points and Authorities in
21 Support Thereof (“Memorandum”), at 5:2-5.) Defendant cites as evidence of this assertion the
22 Declaration of Rafael Nendel-Flores in Support of Defendant Varsity Tutors LLC’s Motion for
25 an Order Staying Action, at Exhibit. 3. Mr. Nendel-Flores asserts under oath that “[a]ttached
24 hereto as Exhibit 3 is a true and correct copy of Aziz Tazi’s April 8, 2020 Arbitration Demand
25 submitted to the American Arbitration Association.” However, no foundation is offered as to
26 how Defendant’s counsel would be competent to authenticate Exhibit 3, and in particular how he
27 would have personal knowledge that Exhibit 3 was “submitted to the American Arbitration
28 Association.” No evidence is provided that an arbitration proceeding ensued or is still pending.
ORDER RE: MOTION FOR STAY
In support of its legal argument, Defendant relies mainly on Code of Civil Procedure
section 1281.4 and the case of Franco v. Arakelian Enterprises, Inc. (2015) 234 Cal.App.4th
947. Section 1281.4 states, in relevant part:
If a court of competent jurisdiction, whether in this State or not, has ordered
arbitration of a controversy which is an issue involved in an action or proceeding
pending before a court of this State, the court in which such action or proceeding
1s pending shall, upon motion of a party to such action or proceeding, stay the
action or proceeding until an arbitration is had in accordance with the order to
arbitrate or until such earlier time as the court specifies.
The Franco case relied on Code of Civil Procedure section 1281.4 in stating:
Because the issues subject to litigation under the PAGA might overlap those that
are subject to arbitration of [the plaintiff's] individual claims, the trial court must
10 order an appropriate stay of trial court proceedings. (Code Civ. Proc., § 1281.4.)
The stay’s purpose is to preserve the status quo until the arbitration is resolved,
11 preventing any continuing trial court proceedings from disrupting and rendering
ineffective the arbitrator’s jurisdiction to decide the issues that are subject to
12 arbitration.
13 (Franco v. Arakelian Enterprises, Inc., supra, 234 Cal.App.4th at p. 966.)
14 This court notes that a different result was reached in another appellate case — Jarboe v.
15 Hanlees Auto Group (2020) 49 Cal.App.5th 830. Jarboe was published on May 8, 2020, but
16 became uncitable when rehearing was granted on June 19, 2020. Despite Jarboe becoming
17 uncitable, Defendant cites to it in its Memorandum filed on July 1, which demonstrates
18 Defendant’s view that Jarboe has a strong bearing on this court’s decision.
19 Because of the potential relevance of Jarboe to the court’s decision in this case, the
20 hearing on the motion to stay will be CONTINUED to October 2, 2020 at 9:00 a.m. In the
21 interim, because of the state interest in PAGA enforcement, the court has a concern about the
22 state of the evidence. Defendant has leave to file, on or before August 21, 2020, evidence
25 concerning the status of a pending Tazi arbitration. Should Plaintiffs wish to file argument or
24 evidence limited solely to the issue of the status of a pending Tazi arbitration, Plaintiffs have
25 leave to do so on or before September 4, 2020.
26
27 Dated: August 7, 2020 oe Le On Le cag
Patricia M. Lucas
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Judge of the Superior Court
ORDER RE: MOTION FOR STAY
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 12 ALEXANDER CHARLES and HENRY Case No. 19CV347249 MULAK, as individuals, 13 ORDER RE: MOTION FOR STAY Plaintiffs, 14 vs. 15 VARSITY TUTORS LLC, 16 Defendant. 17 18 The above-entitled matter came on for hearing on Friday, August 7, 2020, at 9:00 a.m. in 19 Department 3, the Honorable Patricia M. Lucas presiding. The court reviewed and considered 20 the written submissions filed by the parties and issued a tentative ruling on Thursday, August 6, 21 2020. No party contested the tentative ruling; therefore, the court orders the tentative ruling be 22 adopted as the order of the court, as follows: 25 I. INTRODUCTION 24 According to the allegations of the First Amended Complaint (“FAC”), filed on May 30, 25 2019, defendant Varsity Tutors LLC (“Defendant”) sells and provides private tutoring services. 26 (FAC, § 1.) At least 40,000 tutors work for Defendant nationwide. (/d. at 10.) Plaintiff Henry 27 Mulak (“Mulak”) was employed by Defendant as a tutor for five years. (/d. at § 3.) Plaintiff 28 ORDER RE: MOTION FOR STAY Alexander Charles (“Charles”) has been employed by Defendant as a tutor since May 2018. (/d. at 4.) Plaintiffs Mulak and Charles (collectively, “Plaintiffs”) allege that Defendant does not compensate them for time traveling, preparing, communicating with students and parents, or scheduling and bookkeeping. (FAC, §j 17.) Defendant does not pay overtime and does not allow for meal and rest breaks. (/d. at {| 17-18.) Defendant does not provide itemized wage statements. (/d. at§ 20.) Defendant classifies its tutors as independent contractors, in spite of its control over its tutors. (/d. at § 21.) The FAC sets forth causes of action for the following: (1) declaratory relief; and 10 (2) violations of the Private Attorneys General Act. Now before the court is Defendant’s motion 11 to stay the action. 12 IL. DISCUSSION 13 Defendant argues that this case should be stayed because of the existence of an arbitratior 14 proceeding with overlapping liability theories brought by a different individual. Specifically, 15 Defendant’s motion is premised on the asserted fact that another independent contractor, Aziz 16 Tazi, who utilized Defendant’s platform, “instituted an individual arbitration claim against 17 Defendant before the American Arbitration Association in April of 2020 asserting various 18 California Labor Code claims all of which stem from his core contention that Varsity 19 misclassified him as an independent contractor.” (Defendant Varsity Tutors LLC’s Notice of 20 Motion and Motion for an Order Staying Action; Memorandum of Points and Authorities in 21 Support Thereof (“Memorandum”), at 5:2-5.) Defendant cites as evidence of this assertion the 22 Declaration of Rafael Nendel-Flores in Support of Defendant Varsity Tutors LLC’s Motion for 25 an Order Staying Action, at Exhibit. 3. Mr. Nendel-Flores asserts under oath that “[a]ttached 24 hereto as Exhibit 3 is a true and correct copy of Aziz Tazi’s April 8, 2020 Arbitration Demand 25 submitted to the American Arbitration Association.” However, no foundation is offered as to 26 how Defendant’s counsel would be competent to authenticate Exhibit 3, and in particular how he 27 would have personal knowledge that Exhibit 3 was “submitted to the American Arbitration 28 Association.” No evidence is provided that an arbitration proceeding ensued or is still pending. ORDER RE: MOTION FOR STAY In support of its legal argument, Defendant relies mainly on Code of Civil Procedure section 1281.4 and the case of Franco v. Arakelian Enterprises, Inc. (2015) 234 Cal.App.4th 947. Section 1281.4 states, in relevant part: If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding 1s pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. The Franco case relied on Code of Civil Procedure section 1281.4 in stating: Because the issues subject to litigation under the PAGA might overlap those that are subject to arbitration of [the plaintiff's] individual claims, the trial court must 10 order an appropriate stay of trial court proceedings. (Code Civ. Proc., § 1281.4.) The stay’s purpose is to preserve the status quo until the arbitration is resolved, 11 preventing any continuing trial court proceedings from disrupting and rendering ineffective the arbitrator’s jurisdiction to decide the issues that are subject to 12 arbitration. 13 (Franco v. Arakelian Enterprises, Inc., supra, 234 Cal.App.4th at p. 966.) 14 This court notes that a different result was reached in another appellate case — Jarboe v. 15 Hanlees Auto Group (2020) 49 Cal.App.5th 830. Jarboe was published on May 8, 2020, but 16 became uncitable when rehearing was granted on June 19, 2020. Despite Jarboe becoming 17 uncitable, Defendant cites to it in its Memorandum filed on July 1, which demonstrates 18 Defendant’s view that Jarboe has a strong bearing on this court’s decision. 19 Because of the potential relevance of Jarboe to the court’s decision in this case, the 20 hearing on the motion to stay will be CONTINUED to October 2, 2020 at 9:00 a.m. In the 21 interim, because of the state interest in PAGA enforcement, the court has a concern about the 22 state of the evidence. Defendant has leave to file, on or before August 21, 2020, evidence 25 concerning the status of a pending Tazi arbitration. Should Plaintiffs wish to file argument or 24 evidence limited solely to the issue of the status of a pending Tazi arbitration, Plaintiffs have 25 leave to do so on or before September 4, 2020. 26 27 Dated: August 7, 2020 oe Le On Le cag Patricia M. Lucas 28 Judge of the Superior Court ORDER RE: MOTION FOR STAY