Preview
Carolyn H. Cottrell (SBN 166977)
1 David C. Leimbach (SBN 265409)
Kyle G. Bates (SBN 299114)
2 SCHNEIDER WALLACE
COTTRELL KONECKY
3 WOTKYNS LLP 12/5/2017
2000 Powell Street, Suite 1400
4 Emeryville, California 94608
Tel: (415) 421-7100
5 Fax: (415) 421-7105
ccottrell@schneiderwallace.com
6 dleimbach@schneiderwallace.com
kbates@schneiderwallace.com
7
Attorneys for Rachel Moniz
8
SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN MATEO
10 RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736
California and aggrieved employees,
11
Assigned for All Purposes to
Plaintiff,
12 Hon. MarieS. Weiner, Dept. 2
vs.
13 MEMORANDUM OF POINTS AND
ADECCO USA, INC., and DOES 1-50, AUTHORITIES IN OPPOSITION TO
14 inclusive, DEFENDANT'S MOTION TO RENEW
15
DEFENDANT'S DEMURRER OR
Defendants. ALTERNATIVELY ABATEORSTAY
16 PROCEEDINGS
17 Date: December 12,2017
Time: 2:00 p.m.
18 Place: Dept. 2
19
Complaint Filed April18, 2017
20 Trial Date: None Set
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
RENEW DEFENDANT'S DEMURRER ORALTERNATNELY ABATE OR STAY PROCEEDINGS
1 TABLE OF CONTENTS
2
3 INTRODUCTION ............................................................................................................................... 1
4 FACTUAL BACKGROUND .............................................................................................................. 2
5 PROCEDURALHISTORY ................................................................................................................. 2
6 The Moniz Case ................................................................................................................................. 2
7 The Doe Case ..................................................................................................................................... 3
8 Adecco' s Attempts To Entangle Doe and Moniz ...............................................................................4
9 LEGAL STANDARD .......................................................................................................................... 5
10 ARGUMENT ....................................................................................................................................... 5
11 I. Adecco Cannot Meet Its Burden To Show "New or Different Facts, Circumstances or Law"
Because No New Facts, Circumstances, or Law Exist .............................................................. 5
12
a. The Third Amended Complaint and the Fourth Amended Complaint In Doe Are
13 Substantively Identical Concerning Adecco ........................................................................... 7
14 b. The Doe Fourth Amended Complaint Cannot "Clarify" The Scope Of A Now-Superseded
Complaint ................................................................................................................................ 9
15
c. The Requirements For Establishing Res Judicata Have Not Been Met-The Doe Case Is
16 Still Proceeding And Adecco Remains A Defendant ........................................................... 10
17 II. As This Court And The Doe Court Have Both Concluded, There Is No Reason To Stay Or
Abate Moniz ............................................................................................................................. 13
18
CONCLUSION .................................................................................................................................. 15
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
RENEWDEFENDANT'SDEMURRERORALTERNATNELY ABATEORSTAYPROCEEDINGS
1 TABLE OF AUTHORITIES
2
3 Cases
Arias v. Superior Court
4 46 Cal. 4th 969 (2009), ................................................................................................................... 12
5 Daar v. Yellow Cab Co.
67 Cal. 2d 695 (1967) ...................................................................................................................... 10
6
Evans v. Dabney
7
37 Cal. 2d 758 (1951) ..................................................................................................................... 10
8
Even Zohar Canst. & Remodeling, Inc. v. Bellaire Townhouses, LLC
9 61 Cal. 4th 830 (2015) ...................................................................................................................... 5
10 Farmers Ins. Exch. v.Superior Court
218 Cal. App. 4th 96 ......................................................................................................................... 1
11
Hudis v. Crav.iford
12
125 Cal. App. 4th 1586 (2005) ....................................................................................................... 10
13
In re Marriage ofHerr
14 174 Cal. App. 4th 1463 (2009) ....................................................................................................... 10
15 Kollander Canst., Inc. v. Superior Court
98 Cal. App. 4th 304 (2002) ............................................................................................................. 1
16
Lamb v. Ward, 120 Cal. App. 2d 273 (1953) ................................................................................... 13
17
Le Francois v. Gael
18
35 Cal. 4th 1094 (2005) .................................................................................................................... 1
19
Melton v. Boustred
20 183 Cal. App. 4th 521 (2010) ......................................................................................................... 11
21 Mycogen Corp. v. Monsanto Co.
28 Cal. 4th 888 (2002) .................................................................................................................... 10
22
People ex rel. Strathmann v. Acacia Research Cmp.
23
210 Cal. App. 4th 487 (2012) ....................................................................................................... 6, 9
24
Phillips v. Sprint PCS
25 209 Cal.App.4th 758 (2012) ............................................................................................................. 1
26 Villacres v. ABM Industries, Inc.
189 Cal.App.4th 562 (2010) ........................................................................................................... 13
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
RENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS
1
Other Authorities
2 CCP § 1008 ......................................................................................................................................... 9
,
3 CCP § 1008(b) .................................................................................................................................... 5
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO
RENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS
1
INTRODUCTION
2
In yet another attempt to conflate two related but distinct cases, Adecco attempts to recast
3
the third installment in a series of identical rulings in the Doe case as "significant new law and
4
facts" 1 in order to revive its challenge to the pleadings in this case. Not so. In reality, the Doe
5
Court merely upheld its prior rulings on the issue of Garmon preemption, the merits of which were
6
exhaustively briefed by Adecco in its demurrer and rejected by this Court. There are also no new
7
facts. While the Doe plaintiffs made additional allegations in an attempt to enlarge the scope of
8
the penalties sought concerning Adecco in that case, the fact that the Doe plaintiffs failed to
9
differentiate those new allegations from those in their earlier complaint was the central reason for
10
the Doe Court's sustention of Adecco's demurrer. In its papers Adecco rightly identifies situations
11
in which a renewed application for a previously-rejected order may be appropriate, e.g. when there
12
are new applicable facts or law: abrogation of a case upon which the trial court previously relied
13
by the Supreme Court,2 or a de-published appellate decision upon which the trial court previously
14
relied, 3 or the filing of new points and authorities with new legal theories and twelve new exhibits
15
16 in the same proceeding. 4
None of those circumstances are present here. This Court did not rely on any ruling in the
17
18 Doe matter in overruling Adecco' s demurrer in this case, and the Doe Court did not disturb any of
its rulings on the issue of preemption. In fact, the Doe Court has ruled consistently on that issue
19
three separate times, one of which preceded this Court's ruling on Adecco's demurrer and was a
20
focal point of Adecco's argument in support thereof. There are also no new facts or evidence.
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Adecco' s strained attempt to construe now-superseded new allegations concerning the scope of
22
aggrieved employees is far from "significant new law and facts." If anything those changed
23
24
allegations are merely indicative of the fact that this case, which was first properly-filed as to
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1 Adecco's Mot. to Renew Defendant's Demurrer or Alternatively Abate or Stay Proceedings, Moniz v. Adecco USA.
26 Inc., Case No. 17CIV01736 (filed Nov. 17, 2017) at 2 [hereinafter Adecco 's Motion].
2
Phillips v Sprint PCS, 209 Cal.App.4th 758 (2012) (cited in Adecco 's Motion at 16),
27 3
Farmers Ins. Exch. v. Superior Court, 218 Cal. App. 4th 96 (cited inAdecco's Motion at 16)
4 Kollander Canst., Inc. v.Superior Court, 98 Cal. App. 4th 304, 314 (2002), disapproved of on other grounds by Le
28 Francois v. Goel, 35 Cal. 4th 1094 (2005).
1
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION
TORENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS
1 Adecco, subsumes the claims as to Adecco in Doe. Adecco's Motion to renew its demurrer should
2 be summarily denied. 5
3 FACTUAL BACKGROUND
4 This case concerns penalties due under the Private Attorneys General Act ("P AGA") to the
5 State of California based upon unlawful provisions of Adecco' s employment agreements it
6 enforced against its California workforce. Specifically, the overbroad scope of Adecco's unlawful
7 confidentiality provision prevents Ms. Moniz (and the rest of Adecco' s California workforce) from
8 disclosing the amount of their wages and other aspects of their working conditions, including any
9 potentially illegal aspects of those working conditions. These restrictions violate the sections of
10 the California Labor Code at issue in the instant Complaint. Ms. Moniz, a former Adecco
11 employee, reported these unlawful provisions to the L WDA in February 2017, and timely filed her
12 complaint on behalf of the State of California on April 18, 201 7.
13
PROCEDURAL HISTORY
14
The Moniz Case
15
As described above, this case was filed on April 18, 2017. Adecco filed its demurrer on
16
July 25, 2017 on the basis of federal preemption, specifically that Plaintiff's Complaint was
17
preempted by the National Labor Relations Act ("NLRA"). After considering the briefing and oral
18
argument of counsel on September 6, 2017, this Court overruled Adecco 's demurrer on September
19
6, 2017. Adecco filed its Answer to Plaintiffs Complaint on September 21,2017.
20
In accordance with the Court's most recent Case Management Order encouraging the parties
21
to conduct initial discovery, Plaintiff served its first set of discovery requests on Adecco. Adecco
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responded on November 20, 2017 by refusing to answer any of Plaintiffs interrogatories or produce
23
any documents in response to Plaintiffs requests for production of documents. Adecco based its
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refusal to participate in discovery on an ill-founded res judicata argument that bears tangentially
25
on the issues raised in Adecco' s Motion, but for the sake of brevity the details of that discovery
26
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5 Adecco' s refusal to participate in discovery isalso based on its flawed res judicata argument, and is more fully
28 discussed in Plaintiff's Letter-Motion to Compel Discovery Responses, submitted concurrently herewith.
2
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION
TO RENEW DEFENDANT'S DEMURRER OR ALTERNATIVELY ABATE OR STAY PROCEEDINGS
1 dispute are more fully described in Plaintiffs Letter-Motion to Compel Discovery Responses, filed
2 December 5, 2017.
3 The Doe Case 6
4 In addition to the instant case, Adecco is involved in a similar case concerning similarly
5 unlawful provisions in Google's employment agreement, Doe et al. v. Google et. al. The Doe case,
6 originally filed against Google but later expanded to include Adecco, was filed prior to the instant
7 Complaint and remains pending in the San Francisco County Superior Court. 7
8 The Doe Third Amended Complaint was filed to recover penalties only on behalf of
9 aggrieved Adecco employees that were also leased co-employees of Google. Google demurred to
10 the Doe Third Amended Complaint on May 18, 2017, and the Court sustained Google' s demurrer
11 on June 27, 2017. Google's demurrer was based, in large part, on an argument that the NLRA
12 preempted the Doe plaintiffs' claims. Notably, one of the Doe plaintiffs was (and remains) the
13 complainant in an ongoing NLRB proceeding concerning at least some of the Google policies at
14 issue in Doe. On August 21, 2017, Adecco filed its own demurrer to the Doe Third Amended
15 Complaint, which was sustained in part with leave to amend on September 14, 2017.
16 The Doe plaintiffs filed their Fourth Amended Complaint on September 25, 2017. Google
17 answered the Doe Fourth Amended Complaint, and Adecco filed another demurrer thereto on
18 October 13, 2017. Adecco's demurrer to the Fourth Amended Complaint was nearly identical to
19 its demurrer to the Third Amended Complaint, and was based on a theory of NLRA preemption.
20 Adecco's demurrer to the Doe Fourth Amended Complaint was sustained on November 7, 2017.
21 The Doe plaintiffs filed their Fifth Amended Complaint on November 21, 2017. That
22 complaint names Adecco and Google as Defendants, but as to Adecco only seeks PAGA penalties
23 under Section 432.5 of the Labor Code. Specifically, the Doe Fifth Amended Complaint concerns
24 alleged co-employer liability of Adecco for an allegedly unlawful provision of Google's
25 employment agreement.
26
6
For ease of reference, Doe et al. v. Coogle et al., Case No. CGC-16-556034.
27 7
There were two prior iterations of the Doe complaint to which Google demurred and in response to which the Doe
plaintiffs amended their complaint. For ease of reference, this Opposition will begin referring to the Doe case when
28 the first complaint involving Adecco was filed, the Third Amended Complaint.
3
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION
TO RENEW DEFENDANT'S DEMURRER ORALTERNATIVELY ABATE OR STAY PROCEEDINGS
1 Adecco's Attempts To Entangle Doe and Moniz
2 There has been substantial briefing on the interplay between the Doe case and this case and
3 Adecco has, since its introduction to Doe, attempted to pit the two cases against one another in the
4 hopes that it would obtain a favorable ruling with which itcould dispose of its liability for the
5 aforementioned violations. On May 26, 2017, Adecco filed a motion to stay the Doe action in favor
6 of allowing the Moniz action to proceed. After this Court sustained Google's demurrer on federal
7 preemption grounds in Doe, Adecco withdrew its motion to stay Doe and filed a similar demurrer
8 to the Doe Third Amended Complaint on August 21,2017.
9 Then, two days later on August 23, 2017, Adecco filed a motion to stay Moniz in favor of
10 Doe. That motion was made to the Chair of the Judicial Council, not this Court. At the same time,
11 Adecco filed a petition to coordinate Doe and Moniz. Judge Karnow, who is also presiding over
12 the Doe case, was selected as the Coordination Motion Judge. Plaintiff filed her opposition to
13 coordination on October 10,2017. On October 17,2017, after hearing oral argument by the parties,
14 Judge Karnow denied Adecco's application to stay Moniz and continued Adecco's petition for
15 coordination until such time as the Doe court ruled on Adecco's demurrer to the Doe Fourth
16 Amended Complaint. On November 17, 2017 Judge Kamow ordered that the parties submit final
17 papers regarding their position on coordination by December 21, 2017, and set a final hearing on
18 Adecco's petition for coordination on January 4, 2017.
19 Finally, and also on November 17, 2017, Adecco filed its instant Motion to Renew its
20 Demurrer to Plaintiffs Complaint, claiming that "changed legal and factual circumstances"
21 required the revival of Adecco' s demurrer. These circumstances are, according to Adecco, the
22 filing of the Doe Fourth Amended Complaint and the Doe Court's order sustaining Adecco's
23 demurrer to that complaint. As described above and further herein, those two events do not
24 represent changed circumstances of the kind that should warrant revival of Adecco's demurrer, and
25 this Memorandum of Points and Authorities In Opposition follows.
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION
TORENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS
LEGAL STANDARD
1
A party filing a renewed application under CCP § 1008(b) for an order a court has
2
previously refused is required to show, by affidavit, "new or different facts, circumstances, or law"
3
justify the renewed application. Even Zohar Canst. & Remodeling, Inc. v. Bellaire Townhouses,
4
LLC, 61 Cal. 4th 830, 833 (2015), reh 'g denied (Sept. 9,'2015) (quoting CCP § 1008(b)). In Even
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Zohar Construction, the California Supreme Court rejected the moving party's contention that on a
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renewed motion the moving party does not have to present new facts, but only different facts. Id.
7
at 394 n.3. The Court noted that numerous decisions have rejected the argument that a party may
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merely offer anything not previously presented to the court, because this would defeat the
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Legislature's stated goal of reducing the number of reconsideration motions and would remove an
10
important incentive for parties to efficiently marshal their evidence.
11
12 ARGUMENT
13 I. Adecco Cannot Meet Its Burden To Show "New or Different Facts,
Circumstances or Law" Because No New Facts, Circumstances, or Law Exist
14
15 Adecco's motion to renew its demurrer ("Adecco's Motion") is based on two flawed
16 conclusions: 1) that the Doe Fourth Amended Complaint "clarified" the scope of that case, making
17 it coextensive with the scope of Moniz, and 2) therefore that Judge Karnow's November 6 Order
18
sustaining Adecco's demurrer to the Doe Fourth Amended Complaint constitutes res judicata, and
19
Adecco's demurrer in this case should be renewed and sustained. As will be more fully discussed
20
herein, both of those conclusions are incorrect, and Adecco' s Motion should be denied.
21
As a preliminary matter, it isimportant to identify the rulings in Doe and Moniz that are
22
23 relevant to Adecco's motion to renew its demurrer. For ease of reference, Plaintiff has organized
24 those rulings in the table below:
25 Case Ruling Date
26 Doe Order sustaining Google's June 27, 2017
demurrer to Plaintiffs' Third
27 Amended Complaint in part
28
5
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION
TO RENEW DEFENDANT'S DEMURRER OR ALTERNATIVELY ABATE OR STAY PROCEEDINGS
Moniz Adecco' s demurrer is denied September 6, 2017
1 (formality of written order
2 waived)
Doe Order sustaining Adecco' s September 14, 201 7
3 demurrer to Plaintiff's Third
Amended Complaint in part
4 Doe Order sustaining Adecco' s November 7, 2017
demurrer to Plaintiffs Fourth
5
Amended Complaint
6 Doe Plaintiffs' Fifth Amended November 21,2017
Complaint is filed
7
8 First and foremost, there is nothing "new" or "different" about Judge Kamow's ruling on
9
Adecco' s preemption demurrer to the Doe Fourth Amended Complaint. This issue has been
10
considered by the Doe Court three times: First in connection with Google's demurrer to the Doe
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Third Amended Complaint, second in connection with Adecco' s demurrer to the Doe Third
12
13 Amended Complaint, and finally in connection with Adecco's demurrer to the Doe Fourth
14 Amended Complaint. At the September 6, 2017 hearing on Adecco' s demurrer in this case, Adecco
15 urged this Court to follow the Doe Court's earlier ruling on Garmon preemption. This Court
16
considered whether to do so, and rejected Adecco's argument.
17
The fact that the Doe plaintiffs have since changed the scope of penalties they were seeking
18
in their Fourth Amended Complaint does not change anything. In California an amended complaint
19
supersedes the prior complaint, and for all pleading purposes the earlier complaint ceases to exist.
20
21 See, e.g. People ex rel. Strathmann v. Acacia Research Cmp., 210 Cal. App. 4th 487, 506 (2012).
22 Adecco would like the new allegations in the Doe Fourth Amended Complaint to reach all the way
23 back to the filing of the Doe Third Amended Complaint on April 28, 2017, to support Adecco' s
24
argument that "Plaintiff Moniz is, and always has been, an aggrieved employee within the meaning
25
of the Doe PAGA representative class." Adecco 's Motion at 14. Not only does that argument
26
contravene settled California law, it is irrelevant. Even if the Doe Fourth Amended Complaint
27
could somehow "clarify" the scope of the Doe Third Amended Complaint, the first complaint in
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6
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION
TORENEWDEFENDANT'SDEMURRERORALTERNATNELY ABATEORSTAYPROCEEDINGS
Doe that named Adecco as a defendant, Plaintiff still filed her complaint in this case first: On April
1
2 18, 2017. Even if Adecco's argument can be accepted on its face, it is Ms. Correa (the former
3 Adecco employee in the Doe case) who has always been part of the aggrieved employees at issue
4 in this case, not the reverse. That conclusion would be inconvenient for Adecco because Adecco
5 prefers the results ofthe demurrer rulings in Doe, rather than the result in this case.
6
a. The Third Amended Complaint and the Fourth Amended Complaint In
7 Doe Are Substantively Identical Concerning Adecco
8 Adecco refers to the Doe Court's order sustaining its demurrer to the Doe Fourth Amended
9
Complaint as "significant new law and facts" that this Court did not have an opportunity to consider.
10
Adecco 's Motion at 2. However, nothing about the Doe Court's ruling is "new;" this Court
11
expressly considered Adecco' s argument that it was bound to follow the Doe Court's reasoning and
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rejected that argument. Furthermore, and as the Doe Court makes clear in its November 7 Order,
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14 it is the Doe plaintiffs' failure to differentiate the claims against Adecco in the Fourth Amended
15 Complaint from those in the Third Amended Complaint that drove the Court to the same conclusion
16 it had previously reached, twice. Adecco' s strained attempt to re-frame an identical ruling on an
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identical issue raised in an identical fashion as "new law and facts" misses the mark, and Adecco' s
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Motion should be denied.
19
At the hearing in Doe concerning Adecco' s demurrer to the Doe Third Amended Complaint,
20
the Doe plaintiffs argued "that they could 'untether' Plaintiff Paola Correa's claims from Google's
21
22 policies, and focus on Adecco's policies and agreements." The Doe plaintiffs went on to argue that
23 they could "allege them in such a way that the Court can determine whether those policies and
24 agreements are unlawful without making any decision as to their restrictive impact, which is within
25
the purview of the National Labor Relations Board." Doe et al. v. Google et al., Order Sustaining
26
27
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MEMORANDUM OF POINTS AND AUTHORITJES IN OPPOSITION TO DEFENDANT'S MOTION
TO RENEW DEFENDANT'S DEMURRER ORALTERNATIVELY ABATE OR STAY PROCEEDINGS
Demurrers to Fourth Amended Complaint (entered Nov. 7, 2017) at 1 [hereinafter Fourth Am,
1
2 Compl, Demurrer Order]. 8
3 Notably, the Doe complaint as to Adecco rises and falls on the extent to which the claims
4 against Adecco in Doe are inextricably intertwined with the Doe claims against Google. Despite
5 Adecco' surging that Doe and Moniz are "identical" as concerns Adecco, a careful look at the reason
6
why the Doe pleadings against Adecco have failed where this Complaint has moved forward
7
demonstrates the weakness of that argument. In construing the eight causes of action against
8
Adecco in the Doe Fourth Amended Complaint, the Doe Court found that the Doe plaintiffs failed
9
10 to differentiate any of those eight causes of action from those previously considered, and applied
11 the same reasoning in its prior orders on this topic. The Doe Court sustained demurrers by Adecco
12 and Google on the basis ofNLRB preemption because 1) the Court assumed that the NLRB could
13
assume jurisdiction over a penalties-only claim under P AGA and 2) based on that assumption
14
concluded that an identical controversy could be presented to the NLRB by virtue of the fact that
15
the Doe plaintiffs themselves had presented such an identical contr-oversy to the NLRB. As was
16
exhaustively briefed and argued in connection with Adecco 's demurrer in this case, the Doe Court
17
18 did not have the opportunity to consider the legal argument with respect to the scope of the NLRB' s
19 authority. Further, the Doe Court engaged in the requisite preemption analysis based on both the
20 fact that the Doe plaintiffs were involved in a pending NLRB proceeding and the fact that the claims
21
against Adecco in Doe were inextricably linked to the claims against Google. None of that is true
22
here.
23
The Doe Court could not have been more clear that the Doe plaintiffs presented nothing
24
25
"new" in the Fourth Amended Complaint, rejecting every single claim against Adecco for the
26
27 8 This Order is attached as Exhibit B to the Declaration of Linda Inscoe, submitted in support of Adecco's Motion.
Plaintiff has no objection to Adecco's request for judicial notice thereof and for the sake of convenience does not
28 reattach the same Order here.
8
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION
TORENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS
reasons considered previously: "Count 16 is patently tethered to the Google claims. It specifically
1
2 incorporates the claims against Google and applies them to Adecco;" "I have previously found all
3 of these [Counts 17-20] constitute activities prohibited by the NLRA;" "Activities (1) through (4)
4 above [Count 21] are preempted, as discussed;" "Plaintiffs argue that the NLRA does not preempt
5
PAGA causes of action. I have previously rejected plaintiffs' PAGA arguments." Id. at 4-6.
6
In short, there is simply no reason for this Court to take the extraordinary step of considering
7
the Doe Court's ruling on the Fourth Amended Complaint to constitute "significant new law and
8
facts" when the Doe Court itself explicitly held the opposite.
9
10 b. The Doe Fourth Amended Complaint Cannot "Clarify" The Scope Of A
Now-Superseded Complaint
11
In its effort to conjure up new facts, Adecco seizes on the since-rejected (and superseded)
12
additional allegations in the Doe Fourth Amended Complaint that seek to enlarge the scope of
13
14 penalties sought in that case. However, in California, an amended complaint supersedes the prior
15 version-it does not "clarify" or in any way retain earlier allegations not repeated in the amended
16 complaint. See, e.g. People ex rei. Strathmann v. Acacia Research Cmp., 210 Cal. App. 4th 487,
17
506 (2012). Adecco's argument appears to be that the Doe Fourth Amended Complaint, which has
18
itself now been superseded by the Fifth Amended Complaint, somehow both retains the allegations
19
of the earlier complaint and modifies those allegations to make them consistent with the scope of
20
21 the claims in this case. These contortions are necessary to support Adecco' s argument that this
22 Court was actually bound to follow the Doe Court's ruling on preemption, because the facts and
23 claims were actually always the same. Not only has this Court already heard (and rejected)
24 Adecco's argument that it is bound to follow Doe, the legal predicate for the argument here has
25
absolutely no basis in the law.
26
Furthermore, and even if Adecco's argument is taken at face value, a "clarified" earlier-
27
known fact is necessarily not "new" for purposes of a renewal motion under CCP § 1008. In re
28
9
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION
TO RENEW DEFENDANT'S DEMURRER ORALTERNATIVELY ABATE OR STAY PROCEEDINGS
Marriage of Herr, 174 Cal. App. 4th 1463, 1468 (2009) ("[F]acts of which the party seeking
1
reconsideration was aware at the time of the original ruling are not "new or different."). The
2
3 additional allegations in the Doe Fourth Amended Complaint, which both supersede the penalty
4 allegations in the Third Amended Complaint and have since been superseded by the Fifth Amended
5 Complaint, are legally irrelevant to the question of whether this Court should disturb its prior ruling
6
on Adecco' s demurrer.
7
c. The Requirements For Establishing Res Judicata Have Not Been Met-
8 The Doe Case Is Still Proceeding And Adecco Remains A Defendant
9 Res judicata (or "claim preclusion") stems from "the preclusive effect of a final judgment
10
on the merits." Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 896 (2002). The crux of
11
Adecco' s Motion is that its demurrer should be renewed because the Doe Court's sustention of
12
Adecco' s demurrer in that case immediately divested Plaintiff from standing to continue litigating
13
14 this case. Adecco also argues that the Doe Court's order barred this Court from originally
15 considering Adecco' s demurrer in this case independently from the Doe Court's consideration of
16 that issue in the Doe case. That argument is based on faulty assumptions, as described herein, and
17
Adecco' s Motion should be denied.
18
Adecco' s position is contrary to settled law. In California, an order sustaining a demurrer
19
is ordinarily not appealable because it is not a final judgment on the merits. See Evans v. Dabney,
20
37 Cal. 2d 758, 759 (1951). In order for an order sustaining a demurrer to be considered a final
21
22 judgment, it must "finally dispose[] of the particular action and prevent[] further proceedings as
23 effectually as would any formal judgment." Daar v. Yellow Cab Co., 67 Cal. 2d 695, 699,433
24 P.2d 732, 736 (1967) (emphasis added). Even an order sustaining a demurrer without leave to
25
amend is not an appealable order, and is thus not a final judgment on the merits. Hudis v. Crawford,
26
125 Cal. App. 4th 1586, 1590 n.4 (2005) ("An order sustaining a demurrer without leave to amend
27
is not an appealable order .. .. ")(emphasis added).
28
10
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION
TORENEWDEFENDANT'SDEMURRERORALTERNATNELY ABATEORSTAYPROCEEDINGS
Simply put, the Doe Court's order on the Fourth Amended Complaint is not a final judgment
1
2 on the merits. Adecco's Motion vacillates between describing the order as "sustaining Adecco's
3 demurrer without leave to amend" (Adecco 's Motion at 12) and "dismiss[ing] plaintiffs' claims
4 against Adecco with prejudice" (Adecco 's Motion at 16). Neither the words "prejudice" nor
5
"dismiss" appear in Judge Karnow' s order. Adecco downplays the significance of the actual order
6
required by the doctrine of res judicata, as an unnecessary detail, but those details are significant.
7
Adecco cites Melton v.Boustred 183 Cal. App. 4th 521 (2010) in support of its argument against
8
the need for an actual final judgment. That case stands for the proposition that appellate courts
9
10 have the discretion to consider the sustention of a demurrer without leave to amend as incorporating
11 a judgment of dismissal if it disposes of every cause of action in the complaint. Melton v. Boustred,
12 183 Cal. App. 4th 521, 528 n.1 (2010) ("when the trial court has sustained a demurrer to all ofthe
13
complaint's causes of action, appellate courts may deem the order to incorporate a judgment of
14
dismissal. ... ) (emphasis added). But, Melton also cites the general rule: An order sustaining a
15
demurrer without leave to amend is not appealable, and an appeal is proper only after entry of a
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dismissal on such an order. I d.(citation omitted).
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18 In the first instance, this Court is not an appellate court and Adecco is not seeking appellate
19 review. Thus, whether appellate courts have the discretion to consider the sustention of a demurrer
20 without leave to amend an appealable order is irrelevant to
Preview
Carolyn H. Cottrell (SBN 166977) 1 David C. Leimbach (SBN 265409) Kyle G. Bates (SBN 299114) 2 SCHNEIDER WALLACE COTTRELL KONECKY 3 WOTKYNS LLP 12/5/2017 2000 Powell Street, Suite 1400 4 Emeryville, California 94608 Tel: (415) 421-7100 5 Fax: (415) 421-7105 ccottrell@schneiderwallace.com 6 dleimbach@schneiderwallace.com kbates@schneiderwallace.com 7 Attorneys for Rachel Moniz 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736 California and aggrieved employees, 11 Assigned for All Purposes to Plaintiff, 12 Hon. MarieS. Weiner, Dept. 2 vs. 13 MEMORANDUM OF POINTS AND ADECCO USA, INC., and DOES 1-50, AUTHORITIES IN OPPOSITION TO 14 inclusive, DEFENDANT'S MOTION TO RENEW 15 DEFENDANT'S DEMURRER OR Defendants. ALTERNATIVELY ABATEORSTAY 16 PROCEEDINGS 17 Date: December 12,2017 Time: 2:00 p.m. 18 Place: Dept. 2 19 Complaint Filed April18, 2017 20 Trial Date: None Set 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO RENEW DEFENDANT'S DEMURRER ORALTERNATNELY ABATE OR STAY PROCEEDINGS 1 TABLE OF CONTENTS 2 3 INTRODUCTION ............................................................................................................................... 1 4 FACTUAL BACKGROUND .............................................................................................................. 2 5 PROCEDURALHISTORY ................................................................................................................. 2 6 The Moniz Case ................................................................................................................................. 2 7 The Doe Case ..................................................................................................................................... 3 8 Adecco' s Attempts To Entangle Doe and Moniz ...............................................................................4 9 LEGAL STANDARD .......................................................................................................................... 5 10 ARGUMENT ....................................................................................................................................... 5 11 I. Adecco Cannot Meet Its Burden To Show "New or Different Facts, Circumstances or Law" Because No New Facts, Circumstances, or Law Exist .............................................................. 5 12 a. The Third Amended Complaint and the Fourth Amended Complaint In Doe Are 13 Substantively Identical Concerning Adecco ........................................................................... 7 14 b. The Doe Fourth Amended Complaint Cannot "Clarify" The Scope Of A Now-Superseded Complaint ................................................................................................................................ 9 15 c. The Requirements For Establishing Res Judicata Have Not Been Met-The Doe Case Is 16 Still Proceeding And Adecco Remains A Defendant ........................................................... 10 17 II. As This Court And The Doe Court Have Both Concluded, There Is No Reason To Stay Or Abate Moniz ............................................................................................................................. 13 18 CONCLUSION .................................................................................................................................. 15 19 20 21 22 23 24 25 26 27 28 11 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO RENEWDEFENDANT'SDEMURRERORALTERNATNELY ABATEORSTAYPROCEEDINGS 1 TABLE OF AUTHORITIES 2 3 Cases Arias v. Superior Court 4 46 Cal. 4th 969 (2009), ................................................................................................................... 12 5 Daar v. Yellow Cab Co. 67 Cal. 2d 695 (1967) ...................................................................................................................... 10 6 Evans v. Dabney 7 37 Cal. 2d 758 (1951) ..................................................................................................................... 10 8 Even Zohar Canst. & Remodeling, Inc. v. Bellaire Townhouses, LLC 9 61 Cal. 4th 830 (2015) ...................................................................................................................... 5 10 Farmers Ins. Exch. v.Superior Court 218 Cal. App. 4th 96 ......................................................................................................................... 1 11 Hudis v. Crav.iford 12 125 Cal. App. 4th 1586 (2005) ....................................................................................................... 10 13 In re Marriage ofHerr 14 174 Cal. App. 4th 1463 (2009) ....................................................................................................... 10 15 Kollander Canst., Inc. v. Superior Court 98 Cal. App. 4th 304 (2002) ............................................................................................................. 1 16 Lamb v. Ward, 120 Cal. App. 2d 273 (1953) ................................................................................... 13 17 Le Francois v. Gael 18 35 Cal. 4th 1094 (2005) .................................................................................................................... 1 19 Melton v. Boustred 20 183 Cal. App. 4th 521 (2010) ......................................................................................................... 11 21 Mycogen Corp. v. Monsanto Co. 28 Cal. 4th 888 (2002) .................................................................................................................... 10 22 People ex rel. Strathmann v. Acacia Research Cmp. 23 210 Cal. App. 4th 487 (2012) ....................................................................................................... 6, 9 24 Phillips v. Sprint PCS 25 209 Cal.App.4th 758 (2012) ............................................................................................................. 1 26 Villacres v. ABM Industries, Inc. 189 Cal.App.4th 562 (2010) ........................................................................................................... 13 27 28 111 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO RENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS 1 Other Authorities 2 CCP § 1008 ......................................................................................................................................... 9 , 3 CCP § 1008(b) .................................................................................................................................... 5 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lV MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO RENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS 1 INTRODUCTION 2 In yet another attempt to conflate two related but distinct cases, Adecco attempts to recast 3 the third installment in a series of identical rulings in the Doe case as "significant new law and 4 facts" 1 in order to revive its challenge to the pleadings in this case. Not so. In reality, the Doe 5 Court merely upheld its prior rulings on the issue of Garmon preemption, the merits of which were 6 exhaustively briefed by Adecco in its demurrer and rejected by this Court. There are also no new 7 facts. While the Doe plaintiffs made additional allegations in an attempt to enlarge the scope of 8 the penalties sought concerning Adecco in that case, the fact that the Doe plaintiffs failed to 9 differentiate those new allegations from those in their earlier complaint was the central reason for 10 the Doe Court's sustention of Adecco's demurrer. In its papers Adecco rightly identifies situations 11 in which a renewed application for a previously-rejected order may be appropriate, e.g. when there 12 are new applicable facts or law: abrogation of a case upon which the trial court previously relied 13 by the Supreme Court,2 or a de-published appellate decision upon which the trial court previously 14 relied, 3 or the filing of new points and authorities with new legal theories and twelve new exhibits 15 16 in the same proceeding. 4 None of those circumstances are present here. This Court did not rely on any ruling in the 17 18 Doe matter in overruling Adecco' s demurrer in this case, and the Doe Court did not disturb any of its rulings on the issue of preemption. In fact, the Doe Court has ruled consistently on that issue 19 three separate times, one of which preceded this Court's ruling on Adecco's demurrer and was a 20 focal point of Adecco's argument in support thereof. There are also no new facts or evidence. 21 Adecco' s strained attempt to construe now-superseded new allegations concerning the scope of 22 aggrieved employees is far from "significant new law and facts." If anything those changed 23 24 allegations are merely indicative of the fact that this case, which was first properly-filed as to 25 1 Adecco's Mot. to Renew Defendant's Demurrer or Alternatively Abate or Stay Proceedings, Moniz v. Adecco USA. 26 Inc., Case No. 17CIV01736 (filed Nov. 17, 2017) at 2 [hereinafter Adecco 's Motion]. 2 Phillips v Sprint PCS, 209 Cal.App.4th 758 (2012) (cited in Adecco 's Motion at 16), 27 3 Farmers Ins. Exch. v. Superior Court, 218 Cal. App. 4th 96 (cited inAdecco's Motion at 16) 4 Kollander Canst., Inc. v.Superior Court, 98 Cal. App. 4th 304, 314 (2002), disapproved of on other grounds by Le 28 Francois v. Goel, 35 Cal. 4th 1094 (2005). 1 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TORENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS 1 Adecco, subsumes the claims as to Adecco in Doe. Adecco's Motion to renew its demurrer should 2 be summarily denied. 5 3 FACTUAL BACKGROUND 4 This case concerns penalties due under the Private Attorneys General Act ("P AGA") to the 5 State of California based upon unlawful provisions of Adecco' s employment agreements it 6 enforced against its California workforce. Specifically, the overbroad scope of Adecco's unlawful 7 confidentiality provision prevents Ms. Moniz (and the rest of Adecco' s California workforce) from 8 disclosing the amount of their wages and other aspects of their working conditions, including any 9 potentially illegal aspects of those working conditions. These restrictions violate the sections of 10 the California Labor Code at issue in the instant Complaint. Ms. Moniz, a former Adecco 11 employee, reported these unlawful provisions to the L WDA in February 2017, and timely filed her 12 complaint on behalf of the State of California on April 18, 201 7. 13 PROCEDURAL HISTORY 14 The Moniz Case 15 As described above, this case was filed on April 18, 2017. Adecco filed its demurrer on 16 July 25, 2017 on the basis of federal preemption, specifically that Plaintiff's Complaint was 17 preempted by the National Labor Relations Act ("NLRA"). After considering the briefing and oral 18 argument of counsel on September 6, 2017, this Court overruled Adecco 's demurrer on September 19 6, 2017. Adecco filed its Answer to Plaintiffs Complaint on September 21,2017. 20 In accordance with the Court's most recent Case Management Order encouraging the parties 21 to conduct initial discovery, Plaintiff served its first set of discovery requests on Adecco. Adecco 22 responded on November 20, 2017 by refusing to answer any of Plaintiffs interrogatories or produce 23 any documents in response to Plaintiffs requests for production of documents. Adecco based its 24 refusal to participate in discovery on an ill-founded res judicata argument that bears tangentially 25 on the issues raised in Adecco' s Motion, but for the sake of brevity the details of that discovery 26 27 5 Adecco' s refusal to participate in discovery isalso based on its flawed res judicata argument, and is more fully 28 discussed in Plaintiff's Letter-Motion to Compel Discovery Responses, submitted concurrently herewith. 2 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO RENEW DEFENDANT'S DEMURRER OR ALTERNATIVELY ABATE OR STAY PROCEEDINGS 1 dispute are more fully described in Plaintiffs Letter-Motion to Compel Discovery Responses, filed 2 December 5, 2017. 3 The Doe Case 6 4 In addition to the instant case, Adecco is involved in a similar case concerning similarly 5 unlawful provisions in Google's employment agreement, Doe et al. v. Google et. al. The Doe case, 6 originally filed against Google but later expanded to include Adecco, was filed prior to the instant 7 Complaint and remains pending in the San Francisco County Superior Court. 7 8 The Doe Third Amended Complaint was filed to recover penalties only on behalf of 9 aggrieved Adecco employees that were also leased co-employees of Google. Google demurred to 10 the Doe Third Amended Complaint on May 18, 2017, and the Court sustained Google' s demurrer 11 on June 27, 2017. Google's demurrer was based, in large part, on an argument that the NLRA 12 preempted the Doe plaintiffs' claims. Notably, one of the Doe plaintiffs was (and remains) the 13 complainant in an ongoing NLRB proceeding concerning at least some of the Google policies at 14 issue in Doe. On August 21, 2017, Adecco filed its own demurrer to the Doe Third Amended 15 Complaint, which was sustained in part with leave to amend on September 14, 2017. 16 The Doe plaintiffs filed their Fourth Amended Complaint on September 25, 2017. Google 17 answered the Doe Fourth Amended Complaint, and Adecco filed another demurrer thereto on 18 October 13, 2017. Adecco's demurrer to the Fourth Amended Complaint was nearly identical to 19 its demurrer to the Third Amended Complaint, and was based on a theory of NLRA preemption. 20 Adecco's demurrer to the Doe Fourth Amended Complaint was sustained on November 7, 2017. 21 The Doe plaintiffs filed their Fifth Amended Complaint on November 21, 2017. That 22 complaint names Adecco and Google as Defendants, but as to Adecco only seeks PAGA penalties 23 under Section 432.5 of the Labor Code. Specifically, the Doe Fifth Amended Complaint concerns 24 alleged co-employer liability of Adecco for an allegedly unlawful provision of Google's 25 employment agreement. 26 6 For ease of reference, Doe et al. v. Coogle et al., Case No. CGC-16-556034. 27 7 There were two prior iterations of the Doe complaint to which Google demurred and in response to which the Doe plaintiffs amended their complaint. For ease of reference, this Opposition will begin referring to the Doe case when 28 the first complaint involving Adecco was filed, the Third Amended Complaint. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO RENEW DEFENDANT'S DEMURRER ORALTERNATIVELY ABATE OR STAY PROCEEDINGS 1 Adecco's Attempts To Entangle Doe and Moniz 2 There has been substantial briefing on the interplay between the Doe case and this case and 3 Adecco has, since its introduction to Doe, attempted to pit the two cases against one another in the 4 hopes that it would obtain a favorable ruling with which itcould dispose of its liability for the 5 aforementioned violations. On May 26, 2017, Adecco filed a motion to stay the Doe action in favor 6 of allowing the Moniz action to proceed. After this Court sustained Google's demurrer on federal 7 preemption grounds in Doe, Adecco withdrew its motion to stay Doe and filed a similar demurrer 8 to the Doe Third Amended Complaint on August 21,2017. 9 Then, two days later on August 23, 2017, Adecco filed a motion to stay Moniz in favor of 10 Doe. That motion was made to the Chair of the Judicial Council, not this Court. At the same time, 11 Adecco filed a petition to coordinate Doe and Moniz. Judge Karnow, who is also presiding over 12 the Doe case, was selected as the Coordination Motion Judge. Plaintiff filed her opposition to 13 coordination on October 10,2017. On October 17,2017, after hearing oral argument by the parties, 14 Judge Karnow denied Adecco's application to stay Moniz and continued Adecco's petition for 15 coordination until such time as the Doe court ruled on Adecco's demurrer to the Doe Fourth 16 Amended Complaint. On November 17, 2017 Judge Kamow ordered that the parties submit final 17 papers regarding their position on coordination by December 21, 2017, and set a final hearing on 18 Adecco's petition for coordination on January 4, 2017. 19 Finally, and also on November 17, 2017, Adecco filed its instant Motion to Renew its 20 Demurrer to Plaintiffs Complaint, claiming that "changed legal and factual circumstances" 21 required the revival of Adecco' s demurrer. These circumstances are, according to Adecco, the 22 filing of the Doe Fourth Amended Complaint and the Doe Court's order sustaining Adecco's 23 demurrer to that complaint. As described above and further herein, those two events do not 24 represent changed circumstances of the kind that should warrant revival of Adecco's demurrer, and 25 this Memorandum of Points and Authorities In Opposition follows. 26 27 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TORENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS LEGAL STANDARD 1 A party filing a renewed application under CCP § 1008(b) for an order a court has 2 previously refused is required to show, by affidavit, "new or different facts, circumstances, or law" 3 justify the renewed application. Even Zohar Canst. & Remodeling, Inc. v. Bellaire Townhouses, 4 LLC, 61 Cal. 4th 830, 833 (2015), reh 'g denied (Sept. 9,'2015) (quoting CCP § 1008(b)). In Even 5 Zohar Construction, the California Supreme Court rejected the moving party's contention that on a 6 renewed motion the moving party does not have to present new facts, but only different facts. Id. 7 at 394 n.3. The Court noted that numerous decisions have rejected the argument that a party may 8 merely offer anything not previously presented to the court, because this would defeat the 9 Legislature's stated goal of reducing the number of reconsideration motions and would remove an 10 important incentive for parties to efficiently marshal their evidence. 11 12 ARGUMENT 13 I. Adecco Cannot Meet Its Burden To Show "New or Different Facts, Circumstances or Law" Because No New Facts, Circumstances, or Law Exist 14 15 Adecco's motion to renew its demurrer ("Adecco's Motion") is based on two flawed 16 conclusions: 1) that the Doe Fourth Amended Complaint "clarified" the scope of that case, making 17 it coextensive with the scope of Moniz, and 2) therefore that Judge Karnow's November 6 Order 18 sustaining Adecco's demurrer to the Doe Fourth Amended Complaint constitutes res judicata, and 19 Adecco's demurrer in this case should be renewed and sustained. As will be more fully discussed 20 herein, both of those conclusions are incorrect, and Adecco' s Motion should be denied. 21 As a preliminary matter, it isimportant to identify the rulings in Doe and Moniz that are 22 23 relevant to Adecco's motion to renew its demurrer. For ease of reference, Plaintiff has organized 24 those rulings in the table below: 25 Case Ruling Date 26 Doe Order sustaining Google's June 27, 2017 demurrer to Plaintiffs' Third 27 Amended Complaint in part 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO RENEW DEFENDANT'S DEMURRER OR ALTERNATIVELY ABATE OR STAY PROCEEDINGS Moniz Adecco' s demurrer is denied September 6, 2017 1 (formality of written order 2 waived) Doe Order sustaining Adecco' s September 14, 201 7 3 demurrer to Plaintiff's Third Amended Complaint in part 4 Doe Order sustaining Adecco' s November 7, 2017 demurrer to Plaintiffs Fourth 5 Amended Complaint 6 Doe Plaintiffs' Fifth Amended November 21,2017 Complaint is filed 7 8 First and foremost, there is nothing "new" or "different" about Judge Kamow's ruling on 9 Adecco' s preemption demurrer to the Doe Fourth Amended Complaint. This issue has been 10 considered by the Doe Court three times: First in connection with Google's demurrer to the Doe 11 Third Amended Complaint, second in connection with Adecco' s demurrer to the Doe Third 12 13 Amended Complaint, and finally in connection with Adecco's demurrer to the Doe Fourth 14 Amended Complaint. At the September 6, 2017 hearing on Adecco' s demurrer in this case, Adecco 15 urged this Court to follow the Doe Court's earlier ruling on Garmon preemption. This Court 16 considered whether to do so, and rejected Adecco's argument. 17 The fact that the Doe plaintiffs have since changed the scope of penalties they were seeking 18 in their Fourth Amended Complaint does not change anything. In California an amended complaint 19 supersedes the prior complaint, and for all pleading purposes the earlier complaint ceases to exist. 20 21 See, e.g. People ex rel. Strathmann v. Acacia Research Cmp., 210 Cal. App. 4th 487, 506 (2012). 22 Adecco would like the new allegations in the Doe Fourth Amended Complaint to reach all the way 23 back to the filing of the Doe Third Amended Complaint on April 28, 2017, to support Adecco' s 24 argument that "Plaintiff Moniz is, and always has been, an aggrieved employee within the meaning 25 of the Doe PAGA representative class." Adecco 's Motion at 14. Not only does that argument 26 contravene settled California law, it is irrelevant. Even if the Doe Fourth Amended Complaint 27 could somehow "clarify" the scope of the Doe Third Amended Complaint, the first complaint in 28 6 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TORENEWDEFENDANT'SDEMURRERORALTERNATNELY ABATEORSTAYPROCEEDINGS Doe that named Adecco as a defendant, Plaintiff still filed her complaint in this case first: On April 1 2 18, 2017. Even if Adecco's argument can be accepted on its face, it is Ms. Correa (the former 3 Adecco employee in the Doe case) who has always been part of the aggrieved employees at issue 4 in this case, not the reverse. That conclusion would be inconvenient for Adecco because Adecco 5 prefers the results ofthe demurrer rulings in Doe, rather than the result in this case. 6 a. The Third Amended Complaint and the Fourth Amended Complaint In 7 Doe Are Substantively Identical Concerning Adecco 8 Adecco refers to the Doe Court's order sustaining its demurrer to the Doe Fourth Amended 9 Complaint as "significant new law and facts" that this Court did not have an opportunity to consider. 10 Adecco 's Motion at 2. However, nothing about the Doe Court's ruling is "new;" this Court 11 expressly considered Adecco' s argument that it was bound to follow the Doe Court's reasoning and 12 rejected that argument. Furthermore, and as the Doe Court makes clear in its November 7 Order, 13 14 it is the Doe plaintiffs' failure to differentiate the claims against Adecco in the Fourth Amended 15 Complaint from those in the Third Amended Complaint that drove the Court to the same conclusion 16 it had previously reached, twice. Adecco' s strained attempt to re-frame an identical ruling on an 17 identical issue raised in an identical fashion as "new law and facts" misses the mark, and Adecco' s 18 Motion should be denied. 19 At the hearing in Doe concerning Adecco' s demurrer to the Doe Third Amended Complaint, 20 the Doe plaintiffs argued "that they could 'untether' Plaintiff Paola Correa's claims from Google's 21 22 policies, and focus on Adecco's policies and agreements." The Doe plaintiffs went on to argue that 23 they could "allege them in such a way that the Court can determine whether those policies and 24 agreements are unlawful without making any decision as to their restrictive impact, which is within 25 the purview of the National Labor Relations Board." Doe et al. v. Google et al., Order Sustaining 26 27 28 7 MEMORANDUM OF POINTS AND AUTHORITJES IN OPPOSITION TO DEFENDANT'S MOTION TO RENEW DEFENDANT'S DEMURRER ORALTERNATIVELY ABATE OR STAY PROCEEDINGS Demurrers to Fourth Amended Complaint (entered Nov. 7, 2017) at 1 [hereinafter Fourth Am, 1 2 Compl, Demurrer Order]. 8 3 Notably, the Doe complaint as to Adecco rises and falls on the extent to which the claims 4 against Adecco in Doe are inextricably intertwined with the Doe claims against Google. Despite 5 Adecco' surging that Doe and Moniz are "identical" as concerns Adecco, a careful look at the reason 6 why the Doe pleadings against Adecco have failed where this Complaint has moved forward 7 demonstrates the weakness of that argument. In construing the eight causes of action against 8 Adecco in the Doe Fourth Amended Complaint, the Doe Court found that the Doe plaintiffs failed 9 10 to differentiate any of those eight causes of action from those previously considered, and applied 11 the same reasoning in its prior orders on this topic. The Doe Court sustained demurrers by Adecco 12 and Google on the basis ofNLRB preemption because 1) the Court assumed that the NLRB could 13 assume jurisdiction over a penalties-only claim under P AGA and 2) based on that assumption 14 concluded that an identical controversy could be presented to the NLRB by virtue of the fact that 15 the Doe plaintiffs themselves had presented such an identical contr-oversy to the NLRB. As was 16 exhaustively briefed and argued in connection with Adecco 's demurrer in this case, the Doe Court 17 18 did not have the opportunity to consider the legal argument with respect to the scope of the NLRB' s 19 authority. Further, the Doe Court engaged in the requisite preemption analysis based on both the 20 fact that the Doe plaintiffs were involved in a pending NLRB proceeding and the fact that the claims 21 against Adecco in Doe were inextricably linked to the claims against Google. None of that is true 22 here. 23 The Doe Court could not have been more clear that the Doe plaintiffs presented nothing 24 25 "new" in the Fourth Amended Complaint, rejecting every single claim against Adecco for the 26 27 8 This Order is attached as Exhibit B to the Declaration of Linda Inscoe, submitted in support of Adecco's Motion. Plaintiff has no objection to Adecco's request for judicial notice thereof and for the sake of convenience does not 28 reattach the same Order here. 8 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TORENEWDEFENDANT'SDEMURRERORALTERNATIVELY ABATEORSTAYPROCEEDINGS reasons considered previously: "Count 16 is patently tethered to the Google claims. It specifically 1 2 incorporates the claims against Google and applies them to Adecco;" "I have previously found all 3 of these [Counts 17-20] constitute activities prohibited by the NLRA;" "Activities (1) through (4) 4 above [Count 21] are preempted, as discussed;" "Plaintiffs argue that the NLRA does not preempt 5 PAGA causes of action. I have previously rejected plaintiffs' PAGA arguments." Id. at 4-6. 6 In short, there is simply no reason for this Court to take the extraordinary step of considering 7 the Doe Court's ruling on the Fourth Amended Complaint to constitute "significant new law and 8 facts" when the Doe Court itself explicitly held the opposite. 9 10 b. The Doe Fourth Amended Complaint Cannot "Clarify" The Scope Of A Now-Superseded Complaint 11 In its effort to conjure up new facts, Adecco seizes on the since-rejected (and superseded) 12 additional allegations in the Doe Fourth Amended Complaint that seek to enlarge the scope of 13 14 penalties sought in that case. However, in California, an amended complaint supersedes the prior 15 version-it does not "clarify" or in any way retain earlier allegations not repeated in the amended 16 complaint. See, e.g. People ex rei. Strathmann v. Acacia Research Cmp., 210 Cal. App. 4th 487, 17 506 (2012). Adecco's argument appears to be that the Doe Fourth Amended Complaint, which has 18 itself now been superseded by the Fifth Amended Complaint, somehow both retains the allegations 19 of the earlier complaint and modifies those allegations to make them consistent with the scope of 20 21 the claims in this case. These contortions are necessary to support Adecco' s argument that this 22 Court was actually bound to follow the Doe Court's ruling on preemption, because the facts and 23 claims were actually always the same. Not only has this Court already heard (and rejected) 24 Adecco's argument that it is bound to follow Doe, the legal predicate for the argument here has 25 absolutely no basis in the law. 26 Furthermore, and even if Adecco's argument is taken at face value, a "clarified" earlier- 27 known fact is necessarily not "new" for purposes of a renewal motion under CCP § 1008. In re 28 9 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO RENEW DEFENDANT'S DEMURRER ORALTERNATIVELY ABATE OR STAY PROCEEDINGS Marriage of Herr, 174 Cal. App. 4th 1463, 1468 (2009) ("[F]acts of which the party seeking 1 reconsideration was aware at the time of the original ruling are not "new or different."). The 2 3 additional allegations in the Doe Fourth Amended Complaint, which both supersede the penalty 4 allegations in the Third Amended Complaint and have since been superseded by the Fifth Amended 5 Complaint, are legally irrelevant to the question of whether this Court should disturb its prior ruling 6 on Adecco' s demurrer. 7 c. The Requirements For Establishing Res Judicata Have Not Been Met- 8 The Doe Case Is Still Proceeding And Adecco Remains A Defendant 9 Res judicata (or "claim preclusion") stems from "the preclusive effect of a final judgment 10 on the merits." Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 896 (2002). The crux of 11 Adecco' s Motion is that its demurrer should be renewed because the Doe Court's sustention of 12 Adecco' s demurrer in that case immediately divested Plaintiff from standing to continue litigating 13 14 this case. Adecco also argues that the Doe Court's order barred this Court from originally 15 considering Adecco' s demurrer in this case independently from the Doe Court's consideration of 16 that issue in the Doe case. That argument is based on faulty assumptions, as described herein, and 17 Adecco' s Motion should be denied. 18 Adecco' s position is contrary to settled law. In California, an order sustaining a demurrer 19 is ordinarily not appealable because it is not a final judgment on the merits. See Evans v. Dabney, 20 37 Cal. 2d 758, 759 (1951). In order for an order sustaining a demurrer to be considered a final 21 22 judgment, it must "finally dispose[] of the particular action and prevent[] further proceedings as 23 effectually as would any formal judgment." Daar v. Yellow Cab Co., 67 Cal. 2d 695, 699,433 24 P.2d 732, 736 (1967) (emphasis added). Even an order sustaining a demurrer without leave to 25 amend is not an appealable order, and is thus not a final judgment on the merits. Hudis v. Crawford, 26 125 Cal. App. 4th 1586, 1590 n.4 (2005) ("An order sustaining a demurrer without leave to amend 27 is not an appealable order .. .. ")(emphasis added). 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TORENEWDEFENDANT'SDEMURRERORALTERNATNELY ABATEORSTAYPROCEEDINGS Simply put, the Doe Court's order on the Fourth Amended Complaint is not a final judgment 1 2 on the merits. Adecco's Motion vacillates between describing the order as "sustaining Adecco's 3 demurrer without leave to amend" (Adecco 's Motion at 12) and "dismiss[ing] plaintiffs' claims 4 against Adecco with prejudice" (Adecco 's Motion at 16). Neither the words "prejudice" nor 5 "dismiss" appear in Judge Karnow' s order. Adecco downplays the significance of the actual order 6 required by the doctrine of res judicata, as an unnecessary detail, but those details are significant. 7 Adecco cites Melton v.Boustred 183 Cal. App. 4th 521 (2010) in support of its argument against 8 the need for an actual final judgment. That case stands for the proposition that appellate courts 9 10 have the discretion to consider the sustention of a demurrer without leave to amend as incorporating 11 a judgment of dismissal if it disposes of every cause of action in the complaint. Melton v. Boustred, 12 183 Cal. App. 4th 521, 528 n.1 (2010) ("when the trial court has sustained a demurrer to all ofthe 13 complaint's causes of action, appellate courts may deem the order to incorporate a judgment of 14 dismissal. ... ) (emphasis added). But, Melton also cites the general rule: An order sustaining a 15 demurrer without leave to amend is not appealable, and an appeal is proper only after entry of a 16 dismissal on such an order. I d.(citation omitted). 17 18 In the first instance, this Court is not an appellate court and Adecco is not seeking appellate 19 review. Thus, whether appellate courts have the discretion to consider the sustention of a demurrer 20 without leave to amend an appealable order is irrelevant to