Motion for Summary Adjudication in RACHEL MONIZ vs ADECCO USA, INC.| Trellis.Law

On April 18, 2017 a Motion,Ex Parte was filed involving a dispute between Moniz, Rachel, and Adecco Usa, Inc., Does 1 To 50, Inclusive, Does 1 To 9, for Complex Civil Unlimited in the District Court of San Mateo County.

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Carolyn H. Cottrell (SBN 166977)
1 David C. Leimbach (SBN 265409)
Kyle G. Bates (SBN 299114)
2 SCHNEIDER WALLACE
COTTRELL KONECKY
3 WOTKYNSLLP 5/11/2018
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 and the State of California
9 SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN MATEO
10
RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736
11
California and aggrieved employees,
12 Assigned for All Purposes to
Plaintiff, Hon. MarieS. Weiner, Dept. 2
13
vs. PLAINTIFF'S NOTICE OF MOTION AND
14 MOTION FOR SUMMARY ADJUDICATION
ADECCO USA, INC., and DOES 1-50, PURSUANT TO § 437c OF THE CALIFORNIA
15
inclusive, CODE OF CIVIL PROCEDURE;
16 MEMORANDUM OF POINTS AND
Defendants. AUTHORITIES IN SUPPORT OF PLAINTIFF'S
17 MOTION FOR SUMMARY ADJUDICATION
18 Date: June 22, 2018
Time: 9:00 a.m.
19
Place: Dept. 2
20
Complaint Filed April 18, 2017
21 Trial Date: September 4, 2018

22
23

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SUMMARY ADWDICATION PURSUANT TO§ 437c OF
THE CALIFORNIA CODE OF CIVIL PROCEDURE; MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY ADruDICA TION
TABLE OF CONTENTS
1

2 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION ........... 1

3 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION PURSUANT TO§ 437c OF THE
4 CALIFORNIA CODE OF CIVIL PROCEDURE .................................................................................. 2
5 SUMMARY OF ARGUMENT .................................................................................................... 2
6
STATEMENT OF FACTS ........................................................................................................... 3
7
PROCEDURAL HISTORY .......................................................................................................... 5
8
LEGAL STANDARD ................................................................................................................... 6
9
ARGUMENT ................................................................................................................................ 7
10
I. Adecco Forced All Of Its Colleagues And Associates In California During The
11 Statutory Time Period To Sign Illegal Employment Agreements, And They Are All
Aggrieved Employees ................................................................................................. 7
12

13 A. "Aggrieved Employee" Is A Defined Term In The PAGA And Not Subject To
Subjective Interpretation................................................................................. 8
14
B. This Case Is Not A Class Action-All Of Adecco's Employees That Suffered
15 The Labor Code Violations Identified Are Aggrieved Employees For Purposes
Of The PAGA ................................................................................................. 9
16
C. All Of Adecco's Employees In California During The Relevant Time Period
17 Were Prevented From Discussing Their Working Conditions As A
18 Requirement Of Their Employment. ............................................................
12

19 II. Plaintiffs PAGA Notice Meets The Administrative Prerequisites Of The PA GA.. 14

20 A. Plaintiffs PAGA Notice Need Only Give Notice Of The Claimed Violations
At Issue and The Facts And Theories In Support Thereof........................... 14
21
CONCLUSION .....................................................................................................................................
16
22
23

TABLE OF CONTENTS
1 TABLE OF AUTHORITIES

2
Federal Cases
3
Achal v. Gate Gourmet, Inc.
4 114 F. Supp. 3d 781 (N.D. Cal. 2015) ................................................................................................
16

5 Cardenas v. McLane Food Services, Inc.
796 F. Supp. 2d 1246 (C.D. Cal. 2011) .......................................................................................... 3, 15
6
Green v. Bank ofAm., NA.
7
No. 13-56023,2015 WL 9259065 (9th Cir. Dec. 18, 2015) ........................................................... 3,
15
8
Hamilton v. Genesis Logistics, Inc.
9 (C.D. Cal., June 20, 2013, No. CV 13-01848 DDP VBKX) 2013 WL 3168373 .........................14, 15

10 Holak v. K Mart Corp.
No. 1:12-CV-00304-AWI-MJ, 2015 WL 2384895 (E.D. Cal. May 19, 2015) .......................... 2, 8,11
11
Jeske v. Maxim Healthcare Servs., Inc.
12 No. CV F 11-1838 LJO JLT, 2012 WL 78242 (E.D. Cal. Jan. 10, 2012) ...................................... 9,
10
13
Stevens v. Datascan Field Servs. LLC
14 No. 2:15-CV-00839-TLN-AC, 2016 WL 627362 (E.D. Cal. Feb. 17, 2016) ................................. 3,
15

15 State Cases

16 Aguilar v. Atlantic Richfield Co.
25 Cal. 4th 826 (200 1) ........................................................................................................................... 7
17
Amalgamated Transit Union, Locall756, AFL-CIO v. Superior Court
18 46 Cal. 4th 993 (2009) .........................................................................................................................
11
19
Arias v. Superior Court
20 46 Cal. 4th 969 (2009) ..................................................................................................................
10, 11

21 Binder v. Aetna Life Ins. Co.
75 Cal.App.4th 832 (1999) ................................................................................................................... 7
22
Brown v. Ralphs Grocery Co.
23 197 Cal. App. 4th 489 as modified July 20, 20 11 ...............................................................................
10
24
Caliber Bodyworks, Inc. v.Superior Court-
25 134 Cal. App. 4th 365 (2005) .............................................................................................................
14

26 Clark v. Baxter Healthcare Corp.
83 Cal.App.4th 1048 (2000) ................................................................................................................. 7
27
Iskanian v. CLS Transp. Los Angeles, LLC
28 59 Cal.4th 348 (2014) ........................................................................................................................... 9

TABLE OF AUTHORITIES
People v. Leal
1
33 Cal. 4th 999 ......................................................................................................................................
8
2
Richards v. CH2M Hill, Inc.
3 26 Cal. 4th 798 (200 1) .........................................................................................................................
16

4 Williams v. Superior Court
3 Cal. 5th531 (2017) ..........................................................................................................................
11
5
Statutes
6
California Labor Code § 232 ......................................................................................................... 2, 4,
12
7

8 California Labor Code § 432.5 .......................................................................................................... 4,
13

9 California Labor Code § 1102.5 ........................................................................................................ 4,
12

10 California Labor Code §1195(k) ...........................................................................................................
12

11 California Labor Code § 1197.5(k) ......................................................................................................... 4

12 California Labor Code § 2699.3 .................................................................................................. 3,
14, 15
13 California Labor Code§ 2699.5 ............................................................................................................
14
14 California Labor Code§ 2699(a) ..........................................................................................................
11
15
California Labor Code § 2699(c) .............................................................................................. 2, 7, 8, 10
16
California Labor Code§ 2699(£) ...........................................................................................................
11
17
Code of Civil Procedure§ 437c ......................................................................................................
1, 6, 7
18
Other Authorities
19
Fair Employment and Housing Act ("FEHA") .....................................................................................
15
20
Rules
21
Rule 437(c) of the California Rules of Civil Procedure ...................................................................... 6, 7
22

iii

TABLE OF AUTHORITIES
1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

2
PLEASE TAKE NOTICE THAT on May 11, 2018, and pursuant to Case Management Order
3
No. 5 in the above-captioned action, PlaintiffMoniz will move this Court for an order granting summary
4
adjudication as to the scope of aggrieved employees whose claims are at issue in the above-captioned
5
action pursuant to Code Civ. Proc. § 437c(t), on the grounds that there is no triable issue of fact as to
6
the issues of 1) whether all of Adecco' s Colleagues and Associates employed in California from
7
February 1, 2016 through the present are aggrieved employees who suffered Labor Code violations at
8
issue in this case and 2) whether Plaintiffs pre-suit PAGA notice satisfies the administrative
9
prerequisites ofthe PAGA.
10
This Motion is made pursuant to subdivision(s) of Section 437c of the Code of Civil Procedure.
11
The parties to this Motion have stipulated that the Court shall hear this Motion and that the resolution
12
of this Motion will further the interest of judicial economy by decreasing trialtime or significantly
13
increasing the likelihood of settlement.
14
Plaintiffs Motion for Summary Adjudication is based on this Motion, Plaintiffs Memorandum
15
of Points and Authorities submitted concurrently herewith, the papers that form the record in this case,
16
and any arguments of counsel made at the hearing on Plaintiffs Motion. For these reasons, as well as
17
those stated more fully in Plaintiffs Memorandum of Points and Authorities, Plaintiff is entitled to
18
summary adjudication on this issue as a matter of law.
19

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
2 PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION

3 SUMMARY OF ARGUMENT

4 There are only two issues at play in the instant Motion: 1) whether all of Adecco's California

5 employees harmed by Adecco's policies and practices are encompassed within Plaintiff Moniz's

6 Complaint, and 2) whether Plaintiff Moniz properly gave Adecco (and the Labor and Workforce

7 Development Agency, or "L WDA") notice of that fact. The answer to both questions is yes, as a matter

8 oflaw. The "scope" of aggrieved employees in this case is a simple and straightforward issue: according

9 to the Labor Code, an aggrieved employee is "any person who was employed by the alleged violator

10 and against whom one or more oftlte alleged violations was committed." Cal. Labor Code § 2699(c)

11 (emphasis added). This is not a class action, and courts have consistently held that a plaintiff need not

12 have personally suffered every Labor Code violation alleged in a complaint to recover civil penalties

13 under the PAGA. Holak v. K Mart Corp., No. 1:12-CV-00304-AWI-MJ, 2015 WL 2384895, at *5

14 (E.D. Cal. May 19, 2015) ("an aggrieved employee need only suffer one of the Labor Code violations

15 alleged against his or her employer to be able to bring a PAGA claim on behalf of himself or herself

16 and current or former employees who suffered any Labor Code violation at the hands of the employer.").

17 Which, of course, makes sense-Plaintiff Moniz brings this action as a proxy for law enforcement. The

18 State of California has not signed any agreements with Adecco, and does not need to have done so in

19 order to identify and prosecute violations of the Labor Code. Neither does Plaintiff Moniz. The

20 evidence submitted herewith shows, conclusively, that all of Adecco's Colleagues and Associates

21 during the statutory time period were forced to sign employment agreements that prohibited their ability

22 to discuss their salary, compensation, benefits, and working conditions generally. This clearly violates

23 the Labor Code, which expressly forbids an employer from requiring, as a condition of employment,

24 that an employee refrain from disclosing the amount of his or her wages or refrain from disclosing

25 information about the employer's working conditions. See Cal. Labor Code § 232, 232.5. All of

26 Adecco's Colleagues and Associates were harmed in the same way, and all of Adecco's Colleagues and

27 Associates are within the scope of aggrieved employees in this case.

2
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR
SUMMARY ADJUDICATION PURSUANT TO § 437c OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
1 Despite Adecco's protestations to the contrary, Plaintiff Moniz made the scope of aggrieved

2 employees exceedingly clear to both Adecco and the LWDA as early as February 1, 2017. There are

3 two statutory requirements a pre-suit notice letter under the PAGA must meet: The letter must identify

4 1) the specific provisions of the Labor Code alleged to have been violated, and 2) the facts and theories

5 to support the alleged violation. Cal. Lab. Code § 2699.3. California courts are clear that plaintiffs,

6 without the benefit of discovery, "need not set forth 'every potential fact or every future theory."'
7 Stevens v. Datascan Field Servs. LLC, No. 2:15-CV-00839-TLN-AC, 2016 WL 627362, at *4 (E.D.

8 Cal. Feb. 17, 2016) (quoting Cardenas v. McLane Food Services, Inc., 796 F. Supp. 2d 1246, 1260

9 (C.D. Cal. 2011)). "Under California's Labor Code, a written notice is sufficient so long as it contains

10 some basic facts about the violations, such as which provision was allegedly violated and who was

11 allegedly harmed." Green v. Bank ofAm., NA., No. 13-56023,2015 WL 9259065, at *2 (9th Cir. Dec.

12 18, 2015) (footnote omitted). That is exactly what Plaintiff Moniz did here. Now that Adecco finds

13 itself in litigation, Adecco seeks to limit its liability by challenging the level of detail in Plaintiff's pre-

14 suit notice. But willful blindness (to wit, ex post willful blindness) cannot serve to bar the courthouse

15 doors to the tens of thousands of Adecco employees that were forced to sign illegal non-disclosure

16 provision that prevented them from discussing their salary, benefits, and compensation. There is no

17 question that, as a matter of law, Plaintiff's pre-suit notice satisfies the PAGA administrative

18 requirements.
19 STATEMENT OF FACTS
20 Adecco forced its employees, including Plaintiff Moniz, to sign an unlawful non-disclosure

21 provision that prevents Ms. Moniz and the rest of Adecco's California workforce from disclosing the

22 amount of their wages and other aspects of their working conditions, including their salary, benefits,

23 compensation, and any potentially illegal aspects of those working conditions. Plaintiff's Separate

24 Statement of Undisputed Facts ("Pl.'s SSUF") No. 5.

25 Adecco employed both full-time employees (which Adecco referred to as Colleagues) and

26 temporary employees (which Adecco referred to as Associates) during the relevant time period.
27 Plaintiff's SSUF No. 1. Plaintiff Moniz is a former employee of Adecco and was required to sign an
28 employment agreement containing the unlawful non-disclosure provision, which was attached as

3
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR
SUMMARY ADJUDICATION PURSUANT TO§ 437c OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
1 Exhibit 1 to Plaintiffs Complaint. Plaintiffs SSUF No.2. Plaintiff Moniz's employment agreement

2 contained a broad non-disclosure provision that prohibited Plaintiff Moniz from disclosing, "during

3 [her] employment and so long as the information remains confidential following the date of [her]

4 termination," "any Confidential Information." Pl.'s SSUF No.7. The definition of Confidential

5 Information in Plaintiff Moniz's agreement expressly included "salary and benefits data." !d. Under

6 the plain language of Plaintiff Moniz's agreement, therefore, she was prohibited from disclosing

7 information about her working conditions for an indeterminate amount of time-e.g., as long as Adecco

8 considered that information confidential.
9 On February 1, 2017, Plaintiff Moniz sent a pre-litigation notice letter to the Labor and

10 Workforce Development Agency ("LWDA") and Adecco explaining that the non-disclosure provision

11 in Plaintiff Moniz's employment agreement prohibited her, along with the rest of Adecco's California

12 workforce, from disclosing information about their working conditions in violation of five separate

13 sections of the California Labor Code. Pl.'s SSUF No. 15. Plaintiffs pre-litigation notice letter was

14 subsequently served upon the LWDA via e-mail and upon Adecco via certified U.S. mail. Pl.'s SSUF

15 No. 16. After exhausting the waiting period during which the LWDA could intervene and pursue the

16 case, which it did not, Plaintiff Moniz filed suit. Pl.'s SSUF No. 17.

17 Plaintiffs Complaint alleges that Adecco' s illegal employment agreements violate the five

18 sections of the California Labor Code identified in Plaintiffs pre-suit notice letter: California Labor

19 Code§ 232, California Labor Code§ 1197.5(k), California Labor Code§ 232.5, California Labor Code

20 § 1102.5, and California Labor Code§ 432.5. Pl.'s SSUF Nos. 3, 17.

21 Plaintiff has subsequently learned that there are five employment agreements 1 that were in effect

22 from February 1, 2016 through the present that applied to Colleagues that worked for Adecco during
23 the statutory time period, and one employment agreement in effect from February 1, 2016 through the

24 present that applied to Associates. Pl.'s SSUF No.4. All five of the employment agreements pertaining
25 to Colleagues, restrict employees' ability to discuss their working conditions, including their salary,

26 compensation, and benefits, in the same way: "Confidential Information includes, but is not limited to.

27
28 1
In addition to the agreement attached to Plaintiff's Complaint, he four agreements produced by Adecco are Bates-labeled
1) ADECC0-000028-29, 2) ADECC0-000004-08, 3) ADECC0-000023-27, and 4) ADECC0-000009-16.
4
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR
SUMMARY ADJUDICATION PURSUANT TO§ 437c OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
1 . .information regarding ... personnel, compensation. ... Any unauthorized disclosure or release of

2 such Confidential Information would irreparably harm [Adecco]." Pl's SSUF Nos. 8, 9, 10. "Unless

3 required by my job at Adecco, I will never disclose, use copy, or retain any confidential business

4 information or trade secret belonging to Adecco . ... This confidential information includes, but is not

5 limited to ... salary and benefit information . ... " Pl.'s SSUF No. 6. Colleague will not, during

6 Colleague's employment and so long as the information remains confidential following the date of

7 Colleague's termination, for any reason, disseminate, disclose, use, communicate, publish, or

8 otherwise divulge, directly or indirectly, on behalf of himself or others, any Confidential Information,

9 except in the course of the performance of authorized duties on behalf of and for the benefit of Adecco.

10 . . . 'Confidential Information shall include, without limitation, all of the following materials and

11 information of Adecco ... salary and benefits data ...." Pl.'s SSUF No.7. Adecco's Associates were

12 subjected to a similarly broad non-disclosure provision. "Employee acknowledges and agrees that

13 he/she cannot disseminate or disclose to any third party, or use for Employee's own benefit, any

14 Confidential Information relating to the products, business or affairs of Adecco or of Client which

15 is in any way acquired during or by reason ofEmployee's employment with Client." Plaintiffs SSUF

16 No.ll. The prohibition against discussing salary, compensation, and benefits in the Colleague

17 agreements clearly falls within the exceedingly broad non-disclosure provision in the Associate

18 agreement.

19 PROCEDURAL HISTORY

20 This case was filed on April18, 2017. Adecco filed its demurrer on July 25, 2017 on the basis

21 of federal preemption, specifically that Plaintiffs Complaint was preempted by the National Labor

22 Relations Act ("NLRA"). After considering the briefing and oral argument of counsel on September 6,

23 2017, this Court overruled Adecco' s demurrer on September 6, 2017. Adecco filed itsAnswer to

24 Plaintiffs Complaint on September 21, 2017. Discovery is underway. Plaintiff Moniz has been

25 deposed, and Plaintiff Moniz has noticed the deposition of Adecco's person(s) most knowledgeable

26 regarding the employment agreements at issue and their effects on Adecco's entire California

27 workforce.

5
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR
SUMMARY ADJUDICATION PURSUANT TO§ 437c OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
1 During the January 17, 2018 case management conference the Court established a briefing

2 schedule for motions for summary adjudication pursuant to Rule 437(c) of the California Rules of Civil

3 Procedure. In particular, the parties and the Court discussed motions for summary adjudication on the

4 "scope" of the case, such as "whether the PAGA pre-litigation notice included alleged violations against

5 employees for a particular time period or for particular forms of employment agreements pertaining to

6 the subject nondisclosure clause." The parties' stipulation at the January 17, 2018 conference and

7 reflected in the Court's Case Management Order No. 5 serves as a stipulation setting an issue for

8 resolution by motion for summary adjudication pursuant to Section 437(c)(t).

9 On April11, 2018, Paula Correa (a former Adecco associate) moved to intervene in the above-
10 captioned case. At the hearing on Ms. Correa's Motion to Intervene, Plaintiff Moniz acknowledged

11 that Ms. Correa's intervention would be beneficial if it would help resolve the "scope" issue. Following

12 the hearing, Plaintiff Moniz met with Adecco and Ms. Correa to discuss a stipulated order by which the

13 parties (along with Ms. Correa) would stipulate to intervention and the way in which Ms. Correa's

14 intervention would resolve the scope of the aggrieved employees at issue in the case. The parties agreed

15 to stipulate to intervention and to stipulate that Plaintiff Moniz's complaint would encompass the claims

16 of Adecco's Colleagues employed in California during the statutory time period, whereas Ms. Correa's

17 proposed Complaint in Intervention would encompass the claims of Adecco's Associates employed in

18 California during the statutory time period. Counsel for Plaintiff Moniz offered to draft a stipulation

19 and order to that effect for the parties' review.

20 The following afternoon, and after Plaintiff Moniz prepared and circulated a stipulation

21 reflecting the parties' prior agreement, Adecco informed Plaintiff Moniz that Adecco was no longer

22 willing to stipulate to Ms. Correa's intervention or that Ms. Correa's intervention had any impact on the
23 disputed issue of the scope of aggrieved employees. This Motion for Summary Adjudication follows.

24 LEGALSTANDARD
25 Section 437(c)(t) ofthe California Code of Civil Procedure provides that "a party may move for

. 26 summary adjudication of a legal issue or a claim for damages other than punitive damages that does not

27 completely dispose of a cause of action, affirmative defense, or issue of duty." Before moving for
28 summary adjudication on such a legal issue, the parties must jointly stipulate to the issue or issues being

6
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR
SUMMARY ADJUDICATION PURSUANT TO § 437c OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
1 adjudicated. 2 See Section 437(c)(t)(l)(A). When a motion for summary adjudication is granted, that

2 issue will be deemed established at trial. See Rule 437(c)(n)(l). The Court must consider the offered

3 evidence and the reasonable inferences that may be drawn from the evidence. Binder v. Aetna Life Ins.

4 Co. (1999) 75 Cal.App.4th 832, 840; Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048,

5 1059, 1060.

6 The burden of proof that a moving party must satisfy in moving for summary adjudication is the

7 same as the burden of proof attendant to a motion for summary judgment:

8
The motion for summary judgment shall be granted if all the papers submitted show that
9 there is no triable issue as to any material fact and that the moving party is entitled to a
judgment as a matter oflaw. In determining ifthe papers show that there is no triable issue
10 as to any material fact, the court shall consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and sustained by the court, and
11 all inferences reasonably deducible from the evidence, except summary judgment shall not
be granted by the court based on inferences reasonably deducible from the evidence if
12
contradicted by other inferences or evidence that raise a triable issue as to any material
13 fact.
Calif. Code of Civ. P. § 437c(c). "There is a triable issue of material fact if, and only if,the
14
evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
15
the motion in accordance with the applicable standard of proof." Aguilar v. Atlantic Richfield Co. (200 1)
16
25 Ca1.4th 826, 850.
17
ARGUMENT
18

19 I. Adecco Forced All Of Its Colleagues And Associates In California During The
Statutory Time Period To Sign Illegal Employment Agreements, And They Are All
20 Aggrieved Employees.
21
All of Adecco's Colleagues and Associates are aggrieved employees encompassed in the instant
22
case, for three reasons: First, the term "aggrieved employee" is defined by statute-"any person who
23
was employed by the alleged violator and against whom one or more of the alleged violations was
24
committed." Cal. Labor Code§ 2699(c) (emphasis added). Second, this case is not a class action; there
25
is no requirement that Plaintiff Moniz's circumstances giving rise to the Labor Code violations
26
complained of be typical of other aggrieved employees who suffered the same violations. All that is
27
2The parties to the above-captioned action stipulated as such on the record during the January 17, 2018 case management
28
conference, and the stipulation is memorialized in paragraph 11 of Case Management Order No.5.
7
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR
SUMMARY ADJUDICATION PURSUANT TO§ 437c OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
1 required is that "an employee must have suffered at least one of the violations alleged in the complaint

2 to be considered an aggrieved employee for purposes of any given PAGA action." Holak v. K Mart

3 Corp., No. 1:12-CV-00304-AWI-MJ, 2015 WL 2384895, at *5 (E.D. Cal. May 19, 2015). Third, all of

4 Adecco' s Colleagues and Associates in California during the statutory time period suffered the exact

5 same harm: They were all prohibited, as a condition of their employment, from discussing their working

6 conditions and explicitly from discussing their salary, compensation, and benefits. This clearly violates

7 the Labor Code, and there is no question that as a matter of law all of Adecco' s Colleagues and

8 Associates in California from February 1, 2016 through the present are aggrieved employees

9 encompassed by the instant complaint.

10
A. "Aggrieved Employee" Is A Defined Term In The P AGA And Is Not
11 Subject To Subjective Interpretation.

12 All of Adecco's Colleagues and Associates in California are aggrieved employees because the

13 PAGA defines that term: "any person who was employed by the alleged violator and against whom

14 one or more of the alleged violations was committed." Cal. Labor Code§ 2699(c) (emphasis added).

15 By the plain language of the statute, the scope of aggrieved employees is not subject to interpretation,

16 nor is it defined by the circumstances of the representative plaintiffs Labor Code violations. The scope

17 of aggrieved employees, in this case, has been clear from the very first paragraph of Plaintiffs P AGA

18 Notice: "We intend to file a complaint against Adecco on behalfMs. Moniz and all current andformer

19 employees, including but not limited to 'Colleagues,' who worked for Adecco in California." Pl.'s

20 SSUF No. 15.

21 It is well-settled that where the language of the statute is clear and unambiguous, the legislature's

22 intent should not be disturbed. See, e.g. People v. Leal, 33 Cal. 4th 999, 1007 ("Our task in interpreting

23 a statute is to ascertain and effectuate legislative intent. In order to do so, [w]e turn first to the words

24 of the statute themselves, recognizing that they generally provide the most reliable indicator of

25 legislative intent. When the language of a statute is clear and unambiguous and thus not reasonably

26 susceptible of more than one meaning, there is no needfor construction, and courts should not indulge

27 in it.") (internal citations and quotation marks omitted) (emphasis added). The language of the PAGA

28 is clear and absolute: "any person who was employed by the alleged violator and against whom one

8
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR
SUMMARY ADIDDICATION PURSUANT TO§ 437c OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
1 or more of the alleged violations was committed'' is an aggrieved employee, and the Court should not
2 accept Adecco's invitation to unseat the clear intent of the legislature.

3 An action to recover civil penalties under the PAGA is a law enforcement action on behalf of

4 the State of California. "Simply put, a PAGA claim.. .is not a dispute between an employer and an

5 employee . ... It is a dispute between an employer and the state, which alleges directly or through its

6 agents-either the [Labor and Workforce Development] Agency or aggrieved employees-that the

7 employer has violated the Labor Code." Jskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th

8 348, 386.

9 As such, the scope of aggrieved employees in this case cannot be limited by the appurtenant

10 facts in a plaintiff's pre-suit notice letter. The exact title, number, and detail of each employment

11 agreement was not lmown or lmowable at the time Plaintiff Moniz served her PAGA Notice. Adecco

12 even objected the first time Plaintiff sought this information in litigation. Pl.'s SSUF No. 12. Indeed,

13 it was not until the Court ordered Adecco to respond to Plaintiff's discovery requests in its December

14 14, 2017 Case Management Order No.4 that Adecco finally identified the employment agreements in

15 force during the relevant time period. See Case Mgmt. Order No.4 (Dec. 14, 2017) at~ 4.

16 There is no requirement that plaintiffs prove their entire case with the filing oftheir complaint,

17 let alone in the drafting of their pre-suit notice letter under the P AGA. Yet that is exactly what Adecco

18 puts forth as the requisite standard-under Adecco's logic Plaintiff should have included information

19 that Adecco refused to provide in discovery until ordered to do so by the Court. In Adecco' s world,

20 companies can insulate themselves from being put on notice. Fortunately, that is not the law. Jeske v.
21 Maxim Healthcare Servs., Inc., No. CV F 11-1838 LJO JLT, 2012 WL 78242, at *13 (E.D. Cal. Jan.

22 10, 2012) ("Ms. Jeske is correct that she need not have suffered all PAGA violations for which she

23 seeks to pursue civil penalties.") (emphasis added).

24
B. This Case Is Not A Class Action-All Of Adecco's Employees That Suffered
25
The Labor Code Violations Identified Are Aggrieved Employees For
26 Purposes Of The PAGA.

27 Whereas in a class action the named plaintiff is required to meet the standards of adequacy,

28 typicality, and commonality in order to collectively assert the claims of many individuals, that is not

9
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR
SUMMARY ADJUDICATION PURSUANT TO§ 437c OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
1 the case in an action to recover civil penalties under the PAGA. See Arias v. Superior Court (2009) 46

2 Cal. 4th 969, 985 ("Defendants here assert that unless the Labor Code Private Attorneys General Act
3 of 2004 is construed as requiring representative actions under the act to be brought as class actions,
4 defendants in those actions will be subjected to the unfairness flowing from one-way intervention,
5 thereby violating their constitutional right to due process oflaw. We disagree."). Here, Plaintiff Moniz
6 only represents one real party-in-interest: The State of California. The

Case Info

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Weiner, Marie S. Track Judge’s New Case

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Document Filed Date

May 11, 2018

Case Filing Date

April 18, 2017

County

Parties

ADECCO USA, INC. Defendant
BAKER, CHRIS Attorney
Baker Curtis & Schwartz, P.C. Intervenor (participant)
CORREA, PAOLA Intervenor (participant)
COTTRELL, CAROLYN HUNT Attorney for the Plaintiff
DOES 1 TO 50, INCLUSIVE Defendant
DOES 1 TO 9 Defendant
MONIZ, RACHEL Plaintiff
SIEGEL, ADAM Attorney for the Defendant
David Leimbach Attorneys for Plaintiffs
Dylan Carp Attorneys for Defendants
Scott Jang Attorneys for Defendants
Mariko Ashley Attorneys for Defendants
Steven Blackburn Attorney
Deborah Schwartz Attorneys for Plaintiffs
Matthew Goodin Attorney
Linda Inscoe Attorneys for Defendants
Christopher Campbell Attorneys for Defendants
Christina Teeter Attorneys for Defendants
John Winer Attorney
Mia Farber Attorney
Aaron Chiu Attorneys for Defendants
Kyle Bates Attorneys for Plaintiffs
David Balter Attorney
Patricia Kelly Attorney
Michael Smith Attorney
Cameron Fox Attorneys for Defendants
Ankush Dhupar Attorneys for Defendants
Zachary Hutton Attorney
Christopher Baker Attorney
Philip Johnson Attorney
Vanessa Ho Attorney
Jahan Sagafi Attorney
David Chen Attorney
Robert Dolinko Attorneys for Plaintiffs
Keenan Klein Attorney
Adam Truong Attorneys for Defendants
Scott Gordon Attorneys for Plaintiffs
David Rotman Attorneys for Plaintiffs
Robert Yang Attorneys for Defendants
Rachel Dempsey Attorneys for Plaintiffs
Blake Bertagna Attorney
Kyla Gibboney Attorneys for Plaintiffs
Christopher Jagard Attorney
Dan Gildor Attorney
Molly Frandsen Attorney
Adam Yarian Attorney
Charles Jones Attorney
Kelly McInerney Attorney
Matthew Righetti Attorney
Mark Rudy Attorney
Paul Holton Attorneys for Plaintiffs
Felicia Davis Attorneys for Defendants
Zachary Perryman Attorneys for Defendants
Kyle Graham Attorney
Michael Curtis Attorney
Christopher DiPietro Attorney

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Motion,Ex Parte: RACHEL MONIZ vs ADECCO USA, INC.

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