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  • Ignelzi v. DA Defense Logistics HQ, LLC Other Employment Unlimited (15)  document preview
  • Ignelzi v. DA Defense Logistics HQ, LLC Other Employment Unlimited (15)  document preview
  • Ignelzi v. DA Defense Logistics HQ, LLC Other Employment Unlimited (15)  document preview
  • Ignelzi v. DA Defense Logistics HQ, LLC Other Employment Unlimited (15)  document preview
						
                                

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oO NY Dw Bw KH YE RNR RN YR NRK WH = e2Uaqgnsk oS fF FS Ge WA BEER TS Shaun Setareh (SBN 204514) shaun@setarehlaw.com William M. Pao (SBN 219846) william@setarehlaw.com Alexandra R. McIntosh (SBN 320904) alex@setarehlaw.com SETAREH LAW GROUP 315 South Beverly Drive, Suite 315 Beverly Hills, California 90212 Telephone (310) 888-7771 Facsimile (310) 888-0109 Attorneys for Plaintiff MARCELO A. IGNELZI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION MARCELO A. IGNELZI, on behalf of himself, all others similarly situated, Plaintiff, VS. DA DEFENSE LOGISTICS HQ, LLC, a Texas limited liability company; and DOES 1 through 50, inclusive, Defendants. Case No. 17CV318170 Assigned For All Purposes To The Honorable Thomas A. Kuhnle, Department 5 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE | THIRD AMENDED COMPLAINT Date: Time: June 28, 2019 9:30 a.m. | Place: Department 5 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S~ DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINTk WwW Cm nt DH 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Defendant NORTHROP GRUMMAN TECHNICAL SERVICES, INC. (“Northrop”) completely ignores the clearly pleaded allegations in the Third Amended Complaint (“TAC”) that each of the defendants were Plaintiff's employer (and that of the employees he intends to represent). Plaintiff specifically pleaded the nature of Northrop’s control over the employment relationship. These facts support Plaintiff's causes of action against each of the named Defendants both as “employers” under the analysis of Martinez v. Combs, 49 Cal. 4th 35 (2010) and the applicable Industrial Welfare Commission Wage Order, as well as agents under the Labor Code Private Attomeys General Act of 2004, Lab. Code §§ 2698, et seq. (“PAGA”). Second, founded upon its own assumptions, Northrop alleges that this Court should sustain its demurrer due to what it concludes as an absence of community of interest and lack of ascertainability of the putative class. Plaintiff's TAC, however, provides abundant factual allegations exemplifying the existence of a community interest and details the common questions of law and fact that pertain to the class in general. Northrop’s line of reasoning, and cited authority in support thereof, is misplaced and fails to recognize that the factual allegations pled exhibit a community of interest and common questions of law and fact that predominate over individual issues. Moreover, Northrop appears to be making arguments that are more appropriate at the time of class certification, but not appropriate at the pleading stage. Third, Northrop alleges that this Court should sustain its demurrer as to ail references in the TAC to Labor Code sections 204 and 1197.1 because there is no private right of action under these statutes. But Northrop completely ignores that this action includes a claim for civil penalties under PAGA ~a statute that deputizes an aggrieved employee to act on behalf of the California Labor Commissioner — and expressly applies to any alleged violations of more than 150 specifically- enumerated Labor Code provisions, of which both Sections 204 and 1197.1 are included. Fourth, Northrop argues that the PAGA claims are time-barred because Plaintiff did not file his PAGA notice within one year. But nothing in the legislative history indicates that exhaustion must occur within the limitations period applicable to PAGA claims. Rather, the legislative history 1 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINT0 Oo YN DW BF ww HE YR YY YN RNR Ee we = e2 aan ek FBS FF Fe WR BDREBERES demonstrates only that exhaustion must occur before a plaintiff may commence an action under PAGA. Therefore, a plaintiff may amend his pleading to include an exhausted PAGA claim, even if exhaustion occurred after the limitations period provided there is a timely cause of action to which the PAGA claim can relate back. Lastly, to the extent the demurrer depends on allegations outside of the complaint, it is not a demurrer at all and therefore should be denied. Il. FACTUAL AND PROCEDURAL HISTORY Plaintiff brings this action on behalf of himself and other current and former employees as a class action under Code of Civil Procedure section 382 and as a representative action under PAGA. TAC, {ff 1, 11-19. Both of the named Defendants, DA DEFENSE LOGISTICS HQ, LLC (“DA Defense”) and Northrop, were at all relevant times his employer and is responsible for the unlawful labor and business practices alleged in the TAC. TAC, §§ 6-10. Northrop was awarded a contract to perform certain logistics and maintenance services at the Fort Irwin National Training Center (the “Contract”). TAC, § 21. After it was awarded the Contract, Northrop entered into a sub-contract with DA Defense to perform certain logistics and maintenance work at Fort Irwin (the “Sub-Contract”). TAC, { 22. Plaintiff worked for DA Defense as a non-exempt, hourly employee from approximately August 21, 2014 through May 25, 2017. TAC, § 23. Plaintiff's employment with DA Defense was covered under a collective bargaining agreement between Northrop and the Teamsters Union, Local 166 that was in effect from March 1, 2013 through September 30, 2018 and which applied to employees who worked at Fort Irwin. TAC, § 24. Upon information and belief, and pursuant to the terms of the Contract and Sub-Contract, Plaintiff's work schedule, the duties that he performed, when he performed them, how he performed them, and the manner under which he performed his job were dictated by the terms of the Contract and Sub-Contract. TAC, 25. Because Northrop was obligated under the Contract to deliver to the military a minimum number of vehicles each month in advance of pre-planned military exercises conducted throughout the year, these contractual obligations were reflected in the Sub-Contract with DA Defense. TAC, §] 26-27. As aresult, these contractual obligations had a direct effect on the working conditions of Plaintiff and other employees, including but not limited to, their ability to take meal and/or rest periods. TAC, 28. 2 PLAINTIFF'S orrenrTion TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINTCm YA A HW eB ww He PNP PY PNR NNN = — 2 UR GF BEH FF Ce WA AREBHEES Il. LEGAL ARGUMENT A. LEGAL STANDARDS GOVERNING DEMURRERS A demurrer may only be used to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan, 39 Cal. App. 3d 311, 318 (1985); Harboring Homeowners Ass'n v. Superior Court, 63 Cal. App. 4th 426, 429 (1998). No extrinsic evidence can be considered (i.e. no speaking demurrers). Jon v. Equip. Corp. v. Nelson, 110 Cal. App. 3d 868, 881 (1980) (finding that court erred by considering facts asserted in memorandum supporting demurrer); Alfuso v. United States Fid. & Guar. Co., Inc., 169 Cal. App. 3d 859, 862 (1985). For purposes of testing the sufficiency of a cause of action, the demurrer admits the truth of all material properly pled (i.e., all ultimate facts alleged in the complaint). Serrano v. Priest, 5 Cal. 3d 584, 591 (1971). No matter how unlikely or improbably, a plaintiff's allegations must be accepted as true for purposes of ruling on a demurrer. Del. E. Webb Corp. v. Structural Materials Co., 123 Cal. App. 3d 593, 604 (1981). A demurrer for uncertainty will be sustained only where the complaint is so poorly pled that the defendant cannot reasonably respond (i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him). Khoury v. Maly’s of Cal., Inc., 14 Cal. App. 4th 612, 616 (1993). In ruling on a demurrer, a complaint will be liberally construed with a view toward substantial justice between the parties. See Code Civ. Proc. § 452; Stevens v. Superior Court, 75 Cal. App. 4th 594, 601 (1999). Even if a demurrer is sustained, leave to amend the complaint should be granted. Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given. Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1227 (1995). In the case of a first attack on a pleading, a plaintiff need not even request leave to amend, “[uJnless an original complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested.” King v. Mortimer, 83 Cal. App. 2d 153, 158 (1948). In fact, it is an abuse of discretion for a court to deny leave to amend where there is any reasonable possibility that the plaintiff can state a viable cause of action. Goodman v. Kennedy, 18 Cal. 3d 349 (1976). Demurrers are also highly disfavored in the class action context. Gutierrez v. California Commerce Club, Inc., 187 Cal. App. 4th 969, 978 (2010) (“As long as the lead plaintiff alleges 3 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINToO ND HW BF Ww NY Ye NN YN YN NN NY | — e2uans &GS fF F§ Ce DAA BH TS institutional practices. . that affected all members of the potential class in the same manner, and it appears from the complaint that all liability issues can be determined on a class-wide basis, no more is required at the pleading stage.” (quoting Tarkington v. Cal. Unemployment Ins. Appeals Bd., 172 Cal. App. 4th 1494, 1511 (2009)) (internal quotations omitted). In this case, the facts alleged in the TAC suffice in view of these standards and principles. In the TAC, Plaintiff alleges specific policies and practices that he contends are illegal, alleges that his rights and the rights of similarly situated employees were violated as a result of being subject to those policies and practices, and seeks statutorily authorized relief on behalf of himself and those employees. Taken as true, these allegations allow one to fairly infer the bases for liability in this action and that all liability issues can be determined on a class-wide basis. B. A COMMUNITY OF INTEREST EXISTS AND CLASS SUITABILITY SHOULD NOT BE DETERMINED AT THE PLEADING STAGE 1. A Community of Interest Exists Between Plaintiff and the Putative Class In this action, Plaintiff and similarly situated individuals possess a community of interest and common questions of law and fact predominate over individual issues. The community of interest requirement is predicated upon three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can. adequately represent the class. Prince v. CLS Transp., Inc., 118 Cal. App. 4th 1320, 1324 (2004); see also Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 434-435 (2000). a. Predominant Common Questions of Law or Fact Here, founded upon Plaintiff and class members’ experiences working for Defendants, Plaintiff proffered common questions of law and fact that allegedly afflicted all class members and predominate over any questions which affect only individual class members. See TAC. Specifically, Plaintiff presents common questions of law and fact that are derived from the experiences gathered while working for Defendants. See FAC, 15. As presented, these common questions are asserted against Defendants for policies and practices that affected Plaintiff and all similarly situated individuals and take predominance over individual claims. 4 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINTRw N oO I DH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Plaintiff’s Claims Are Typical of the Class The claims Plaintiff seeks to represent are typical of other class members’ claims. See FAC, § 16. As Northrop concedes in its demurrer, Plaintiff actually worked for Northrop until 2014. Demurrer, at 7:5. Plaintiff subsequently worked for DA Defense until May 2017. Demurrer, at 7:5-6; TAC, § 23. Given Plaintiffs experiences working for both Northrop and DA Defense during the two employment periods, Plaintiff purports to represent himself and all similarly situated current and former non-exempt hourly employees with respect to Defendants’ Labor Code violations. TAC, 1. Among Northrop’s contentions that Plaintiff's claims are not typical of the class, is that Plaintiff's class definitions are overly broad. Demurrer, at 10:3-8. To support its contentions, Northrop argues that Plaintiff “fails to plead any facts to support his claim that Defendant violated in some uniform or common illegal manner, the rights of all current and former hourly non-exempt employees of Northrop statewide, let alone the rights of all non-exempt employees of unspecified third parties and staffing agencies anywhere in California during the four-year statute of limitations period.” Jd. at 11:14- 18. Plaintiff, however, provides factual allegations that detail Defendants’ Labor Code violations in each cause of action which pertain to both Plaintiff and the putative class. See TAC, §§ 1, 61-63, 72-74, 90-91, 94-96, 107, 112-113, 123-124. As detailed in the TAC’s allegations, Plaintiff more than adequately addressed Northrop’s contentions that the complaint fails to allege facts sufficient to establish a community of interest. Moreover, Plaintiff's factual allegations asserted in the operative complaint shows that he was harmed in a similar manner to those similarly situated, and clearly refutes Northrop’s wholesale disavowal of the TAC’s factual allegations. Accordingly, for the purposes of ruling on the Northrop’s demurrer, this Court should find that the factual allegations of Plaintiff's claims are typical of the class. c. Plaintiff Is An Adequate Class Representative Plaintiff is an adequate class representative in that he has no interests that are adverse to or otherwise in conflict with the interests of absent class members. Plaintiff is dedicated to vigorously prosecuting this action on their behalf. Plaintiff will fairly and adequately represent and protect the interest of the other absent class members. See FAC, 17. Ml _ 5 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINTOo OB IY DA BF BW NY NY N BY NY NY N NN Nw mm ek ont DAH BBW NH = SO we IY DAH EF WH SF S 2. Class Suitability Should Not Be Determined At The Pleading Stage The decision whether a case is suitable to proceed as a class action ordinarily is made on a motion for class certification. Tucker v. Pacific Bell Motor Services, 208 Cal. App. 4th 201, 211 (2012). However, a court may decide the question by “sustaining a demurrer to the class action allegations of a complaint only if it concludes as a matter of law that, assuming the truth of the factual allegations in the complaint, there is no reasonable possibility that the requirements for class certification will be satisfied.” Bridgeford v. Pacific Health Corp. (2012) 202 Cal. App. 4th 1034, 1041-1042; see Gutierrez, supra, 187 Cal. App. 4th at 975-976. In Vasquez v. Superior Court (1971) 4 Cal. 3d 800, the California Supreme Court found that contentions regarding an alleged absence of a community of interest are “unpersuasive at the pleading stage because we cannot assume that plaintiffs will be unable to establish their allegations without the separate testimony of each class member; at least they must be afforded the opportunity to show that they can prove their allegations on a common basis.” Jd. at 813. To this point, the Court further reasoned that “it is sufficient that there is a reasonable possibility plaintiffs can establish a prima facie community of interest among the class members. ..and that Plaintiff's inability to do so, if that be the ultimate result, can be determined at a later stage of the proceeding.” Jd. Here, for the purposes of ruling on Northrop’s demurrer, this Court should find that Plaintiff’ s complaint establishes a prima facie community of interest among the class members. /d. Plaintiff presented factual allegations in the complaint dealing with Defendants’ failure to provide him and all other similarly situated individuals with meal periods, rest periods, premium wages for unprovided meal and/or rest periods, minimum wage for all hours worked, overtime wages, accurate written wage statements, and timely payment of wages for all hours worked following separation of employment. See TAC, {ff 1, 61-63, 72-74, 90-91, 94-96, 107, 112-113, 123-124. Further, Plaintiff with informed belief presented common questions of law and fact that are rooted in the experiences he and class members share as a result of their employment with Defendants. TAC, § 15. Lastly, Plaintiff presented an ascertainable class consisting of all persons employed by Defendants in hourly or non-exempt positions during the relevant time period, defined as the period beginning four years prior to the filing of this action. TAC, § 12. 6 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINTCoO YN DHA BW NY HY NY N NY N NN N NY YN Be Be Be Be ee eB eB eK oN Dh RYH Nd fF SOM ADH BR YW YH SF S Moreover, in Beckstead v. Superior Court (1971) 21 Cal. App. 3d 780, the court noted that California maintains “a judicial policy of allowing potential class action plaintiffs to have their action measured on its merits to determine whether trying their suits as a class action would bestow the requisite benefits upon the litigants and the judicial process to justify class action litigation.” In order to effect this judicial policy, the court has “mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stages of litigation.” Jd. Lastly, Northrop’s reliance on Schyermer v. Tatum (2016) 245 Cal. App. 4th 912 is misplaced. In Schermer, plaintiffs brought a class action against 18 mobilehome parks each owned and/or operated through “single-purpose” business entities who were also each individually named in the complaint. The plaintiffs alleged that the leases they were required to sign were unconscionable, among other claims. The trial court granted the defendant employer’s demurrer on grounds that there was no possibility that plaintiffs could satisfy the community of interest requirement for class certification. In denying plaintiff's appeal, the Fourth District Court of Appeals pointed out that plaintiff failed to even allege that defendants implemented a uniform policy and procedure in each and every lease transaction. Interestingly, Schyermer even compares its decision to Prince, supra, 118 Cal. App. 4th 1320, acknowledging that a wage and hour class action should not have been decided at the pleading stage. Schyermer, at 926. Ultimately, the Schyermer court concluded that class treatment was inappropriate because there were substantial and numerous factually unique questions to be resolved in determining plaintiffs’ and the putative class members’ right to recovery. Id. at 926-927 (“However, because there are 18 mobilehome parks at issue in this case, 16 of which are located in different cities in California, and because eight of these parks are located in cities that contain rent control ordinances, we independently conclude recovery of any alleged rents paid by plaintiffs — and/or any disgorgement of ill- gotten profits obtained by defendants — would not only be unique as to each plaintiff and putative class member, but also as to each park.”). Unlike Schyermer, the allegations in the TAC pleads allegations and common issues that affect Plaintiff and similarly situated individuals. iM Ml 7 PLAINTIFF’S OF POSTION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINT0 Oe IN DHA BF WN NY N HY NY YN NN ND wm eI KDA KB YH F&F SBD we XI AA BRB BH KS Cc LABOR CODE SECTIONS 204 AND 1197.1 SHOULD NOT BE STRICKEN BECAUSE THERE IS A PAGA CLAIM Northrop asserts that Labor Code sections 204 and 1197.1 should be dismissed or stricken because there is no private right of action. Northrop is not seeking to dismiss or strike these statutory sections from the PAGA claim. Opp. at 14, fn. 1. Plaintiff concedes that there is no private right of action as to only Labor Code sections 204 and 1197.1. D. PLAINTIFF’S PAGA CLAIM AGAINST NORTHROP IS NOT TIME-BARRED BECAUSE THE THIRD AMENDED COMPLAINT INCLUDES AN EXHAUSTED PAGA CLAIM THAT RELATES BACK TO A TIMELY CAUSE OF ACTION There is no language in the PAGA statute for the proposition that a one-year limitations period applies to the pre-filing procedures for PAGA claims. A one-year limitations period applies to PAGA claims because Code of Civil Procedure section 340 prescribes a one-year limitations period for an “action” upon a statute imposing a penalty. Lab. Code section 2699.3, which sets forth the pre-filing procedures for PAGA claims, does not state that exhaustion must occur within one year of accrual of the PAGA claim. Indeed, section 2699.3 expressly provides that “a plaintiff may as a matter of right amend an existing complaint to add a cause of action arising under this part at any time within 60 days of the time periods specified in this part.” Lab. Code. § 2699.3, subd. (a)(2)(C). The only California authority addressing PAGA claims and the relation back doctrine held that the relation back doctrine applied to PAGA claims. Amaral v. Cintas Corp. No. 2, (2008) 163 Cal.App.4th 1157, 1199-1200. In Amaral, plaintiffs filed their original complaint on June 23, 2003, and the original complaint sought waiting time penalties under Labor Code § 203 but no other Labor Code penalties. On September 16, 2004, plaintiffs filed an amended complaint to seek additional penalties under PAGA, which went into effect on January 1, 2004. The court held that the PAGA claim related back to plaintiff's original complaint. /d. at 1199-1200. The court explained: Plaintiffs’ request for PAGA penalties in the second amended complaint was based on the exact same facts alleged in their original complaint regarding [defendant’s] failure to comply with the LWO. The factual basis of [defendant’s] liability is the same, and the resulting injury plaintiffs allege is the same. It is true that plaintiffs could not have included a claim for PAGA penalties in their original complaint, because it was filed before PAGA was enacted, but this fact does not 8 PLAINTIFF’S REO RRER TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINTcoc Om ND HW Bw Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 change the analysis. As the trial court observed; PAGA was at most a new theory of recovery that became available to plaintiffs during the pendency of their lawsuit, and claims based on new legal theories may relate back so long as they address the same set of facts. Id, at 1200. Northrop fails to cite any California authority addressing applicability of the relation back doctrine where PAGA’s pre-filing requirements are satisfied after the limitations period had expired. In this case, even though Plaintiff exhausted his PAGA claim after the limitations period ended, his claim may relate back to the earlier-filed, timely PAGA action. Thus, because there is a timely cause of action to which Plaintiff's PAGA claim can relate back, his claims are timely.! Northrop cites to Brown v. Ralphs Grocery Company (2018) 28 Cal. App. 5th 824, 839, for the preposition that a prospective PAGA plaintiff must send the required notice to the LWDA and her employer within a one-year statute of limitations. But the circumstances in Brown do not apply here in this case. In Brown, the plaintiff initially submitted a 2009 PAGA notice asserting claims for violations of Labor Code sections 204, 226, 226.7 and 512. She then proceeded to file her initial complaint which asserted those PAGA claims. Later in 2012, after the defendant successfully moved to compel arbitration, the plaintiff sought to amend her complaint by also adding new PAGA claims for violations of Labor Code sections 201, 202 and 203, which were not asserted in the 2009 notice. The Second Appellate District held that the plaintiff waited too long to give notice of her new PAGA claims and therefore did not comply with Labor Code section 2699.3. In this case, Plaintiff is not adding any new PAGA claims. Instead, Plaintiffis asserting the same identical PAGA claims against Northrop that were properly exhausted pursuant to the requirements of Labor Code section 2699.3. Moreover, the Brown court also discussed factors related to equitable tolling and relation back that were not applicable there, but are applicable here. It should be noted that California’s equitable tolling rule is not limited to class actions but is ' At least one other California state court has ruled favorably and held that a plaintiff may amend his pleading to include an exhausted PAGA claim, even if exhaustion occurred after the limitations period ended, provided there is a timely cause of action to which the PAGA claim can relate. Although the Order in Hickman vy. AC Square, Inc., No. 522172 (San Mateo County Superior Court, Nov. 18, 2016) (Plaintiff's Request for Judicial Notice, {| 2) is unreported and therefore not citable pursuant to California Rules of Court, Rule 8.1115, this issue is more common than the dearth of reportable would suggest. 9 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINToem IY HH PB WwW WN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 applied broadly to avoid injustice. The factors that a court looks at are: (1) timely notice to the defendant in the filing of the first claim; (2) lack of prejudice to the defendant in gathering evidence against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the second claim. Collier v. City of Pasadena, 142 Cal.App.3d 917, 924 (1983). Those elements are all met here. Northrop received notice of the claim as early as March 28, 2019 when Plaintiff served his amended PAGA letter on Northrop. There has been no prejudice to Northrop in gathering evidence, nothing has precluded Northrop from obtaining witness statements or taking steps to preserve documents. The grounds for equitable tolling are particularly strong in this case. This Court should apply tolling to the PAGA cause of action in this case so that the time for Plaintiff Camacho to bring a PAGA claim is tolled by the earlier-filed PAGA action filed by Ruth Munoz in this case, especially because there are no new claims being asserted. 1. Under California Law, Plaintiff’s Claims Against Northrop Relate Back to The Earlier-Filed PAGA Claim, Therefore His Claim Against Northrop Is Time! Under California law, the relation back doctrine permits otherwise untimely claims when they relate back to claims made in a timely filed complaint. The doctrine applies to exhaustion of administrative remedies, where the new allegations are reasonably related to the allegations made in the pre-lawsuit administrative notice or charge. E.g., Baker v. Children’s Hospital Medical Center, 209 Cal.App.3d 1057 (1989). The key question is whether the new allegations would likely have been discovered by the administrative agency if it had initiated an investigation. E.g., Okoli v. Lockheed Technical Operations Co., 36 Cal.App.4th 1607, 1615 (1997) (new allegations relate back to administrative charge if they reasonably would have been discovered by an administrative investigation). In this case, Plaintiff is not seeking to add any new claims. Therefore, Plaintiff's PAGA claim against Northrop relates back to the earlier-filed PAGA claim asserted in the First Amended Complaint. If the LWDA had investigated, they would have discovered Northrop’s involvement and therefore the basis for joint and/or vicarious liability. The federal authorities cited by Northrop are not binding on California courts and are not even 10 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINTCom IY DAW BW NH PR wR NH WKY NRW WD m — e2 uaa & BOS FF Se UWRF BDEBERAS persuasive authority because they misapplied California law. For example, all of the cases cited by Northrop are federal court cases that hold that a plaintiff must give notice to the LWDA with the limitations period. Yet, nothing in Labor Code § 2699.3 expressly states that exhaustion must occur within one year of accrual of the PAGA claim. Amaral at 1200. IV. CONCLUSION For the reasons set forth above, Plaintiff respectfully requests that this Court deny Lifetime’s demurrer, or if this Court is inclined to grant Lifetime’s demurrer, that Plaintiff be permitted to amend the complaint. DATED: June 17, 2019 SETAREH LAW GROUP —— L~_— SHAUIN SETAREH Attorneys for Plaintiff MARCELO A. IGNELZI 11 PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICES, INC.’S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINT24 26 27 28 PROOF OF SERVICE lam a citizen of the United States and am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 315 South Beverly Drive, Suite 315, Beverly Hills, CA 90212. On June 17, 2019, I served the foregoing documents described as: PLAINTIFF’S OPPOSITION TO DEFENDANT NORTHROP GRUMMAN TECHNICAL SERVICE. INC.'S DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINT in this action by transmitting a true copy thereof enclosed in a sealed envelope addressed as follows: Thomas F. Nowland Esq. Daniel A. Brodnax Esq. Sarah K. Simmons Esq. Sean B. Janzen Esq. LAW OFFICES OF THOMAS F. NOWLAND 20241 SW Birch St. Suite 203 Newport Beach, CA 92660 Defense Counsel for DA DEFENSE LOGISTICS HQ, LLC [XxX] BY MAIL I am readily familiar with the practice of Setareh Law Group for the collection and processing of correspondence for mailing with the United States Postal Service. It is the practice that correspondence is deposited with United States Postal Service the same day it is submitted for mailing with postage thereon fully prepaid at Beverly Hills, California. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. IX] STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 17, 2019, at Beverly Hills, California. 1 PROOF OF SERVICE