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

On April 18, 2017 a Motion-Secondary 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)
David C. Leimbach (SBN 265409)
Kyle G. Bates (SBN 299114)
2 SCIEsIEIDER WALLACE
COTTRELL KONECKY
WOTKYNS LLP 6/15/2018
2000 Powell Street, Suite 1400
4 Emeryville, California 94608
Tel: (415) 421-7100
Fax: (415) 421-7105
ccottreil@schneiderwallace. corn
dleimbach@schneiderwallace. corn
kbatesschneiderwallace.corn
7
Attorneys for Rachel Moniz
8 and the State of California
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SAN MATEO

RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736
California and aggrieved employees,
12 Assigned for All Purposes to
Plaintiff, Hon. Marie S. Weiner, Dept. 2
13
vs.
14
PLAINTIFF'S REPLY MEMORANDUMOF
ADECCO IJSA, INC., and DOES 1-50, POINTS AND AUTHORITIES IN SUPPORT OF
inclusive, PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
16 Defendants.
Date: June 22, 2018
17
Time: 9:00 a.m.
Place: Dept. 2

19 Complaint Filed April 18, 2017
Trial Date: September 4, 2018
20

28
PLAINTIFF'S REPLY MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARYADJUDICATION
Rachel Moniz v. Adecco USA, Inc., Case No. 17CIVOI736
INTRODUCTION

There are only two issues before the Court in Plaintiff's Motion for Summary Adjudication:

3 I) whether the scope of aggrieved employees in this case includes all of Adecco's Colleagues and

4 Associates in California, and 2) whether Plaintiffs pre-suit PAGA notice letter complies with the
5
relevant administrative requirements under the Labor Code. The answer to both of those questions is,
6
as a matter of law, yes.
7
The scope of aggrieved employees in a suit to recover PAGA penalties is determined by
8

operation of law, not by any specific transaction of which the representative plaintiffwas a part. Huff

10 v. Securilas Security Services USA, a case recently decided by the California Court of Appeals but

11 that Adecco has declined to bring to the Court's attention, squarely addressed this issue. Cal. Ct.

App., May 23, 2018, No, H042852, 2018 WL 2328672. In that case a full-time employee (similar
13
here to an Adecco "Colleague" ), sought to recover PAGA penalties for Labor Code violations on
14
behalf of himself and other full-time employees as well as temporary employees (similar here to
15
Adecco "Associates" ). The appellate court contirmed that just as the state of California does not need
16

17
to have personally suffered each Labor Code violation for which it seeks recovery, neither do

18 plaintiffs pursuing penalties under the PAGA. The Court went on to conclude that ""(t)he

19 proposition that PAGA allows an employee to pursue penalties only for the type of violation he or

she has suffered is directly at odds with the provision that an action may be brought by an
21
employee against whom 'one or more'f the alleged violations was commiffed." Id, at *4
22
(emphasis added). Which, of course, makes sense given the purpose and design of the PAGA. "For
23
PAGA standing a plaintiff need only have been employed by the violator and affected by 'one or
24
more'f the alleged violations." ($ 2699, subds. (a), (c)).

28
PLAINTIFF'S REPLY MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION
Rachel Moniz v. Adecco USA, inc.,Case No. 17CIV01736
There is no dispute that the scope of aggrieved employees is defined by the PAGA itself— it

is simply "any person who was employed by the alleged violator [here, Adecco] and against whom

3 one or more of the alleged violations was committed." Cal. Labor Code II2699(c).

Furthermore, Plaintiff's pre-suit PAGA notice clearly and unmistakably put Adecco on notice
5
of the Labor Code violations suffered by all of its California employees, including all of Adecco's
6
Colleagues and Associates. The fact that Adecco has cherry-picked other language in those
7
documents that it believes is limiting is irrelevant all that matters under the PAGA is what is
8

disclosed in the notice. The exhaustion requirement contemplated by Section 2699.3 of the Labor

Code is a prerequisite to filing a complaint to recover penalties under the PAGA.'t is not a

11 substitute for the allegations in the complaint or a way to limit the scope of relief sought in the

complaint. See Cardenos v. McLane FoodServices, Inc., 796 F. Supp. 2d 1246, 1260 (C.D. Cal.

2011).
14
Adecco did not raise any issue with Plaintiff's pre-suit PAGA notice when Adecco received it
15
or when Adecco filed its demurrer to Plaintiff's Complaint, which was overruled, Indeed, Adecco
16
did the opposite. In August 20 I 7 Adecco sought to coordinate Moniz, a case brought by an Adecco
I7
18 Colleague to recover penalties relating to allof Adecco's California employees, with the Doe case, a

19 case brought by Paola Correa, an Adecco Associate, to recovery penalties relating to all of Adecco's

California employees. In so doing Adecco told the coordination judge that Plaintiff Moniz's
21
employment agreement was "substantially the same Adecco agreement at issue in the Doe Action."
22
See Adecco's Mem. of Points and Authorities In Support of Adecco's Pet. for Coordination and
23
Application for Stay (Aug. 23, 2017) at 5 (emphasis added), attached as Exhibit 1 to Plaintiff's
24
Request For Judicial Notice In Support of Plaintiffs Mot. for Summary Adjudication, submitted

26 's described in Plaintiff's
Motion for Summary Adjudication, tj 2699.3 simply requires that the prospective plaintiff
"that theprospective plaintiff identify I) the
specific provisions of theI.abor Code alleged to have been violated, and 2)
27 the factsand theories to supportthe alleged violation."

28 2
PLAINTIFF'S REPLY MEMORANDUMOF POIN'fS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARYADJUDICATION
Rachel Moniz v. Adecco USA, inc., Case No. 17CIV01736
concurrently herewith. Adecco also told the coordination judge that the two cases sought "identical
I
relief'n the form of PAGA penalties for violations of Labor Code sections 232, 1197.5, 232.5,

3 1102.5, and 432.5. Id. "Indeed, the only substantive difference between the two complaints is that

4 the Doe Complaint includes Googlc...." ld. Now, nearly one year later and less than ninety days
5
before trial, Adecco disclaims any knowledge of the scope of aggrieved employees and Labor Code
6
violations in this case. Adecco should not be permitted to parse this issue in conflicting ways before
7
different tribunals to gain an advantage in litigation.
8
All that matters for purposes of the pending Motions for Summary Adjudication is whether

10 Plaintiff is alleged to have suffered at least one of the Labor Code violations set forth in her

11 Complaint and whether Plaintiff's pre-suit PAGA notice meets the administrative exhaustion

requirements of lj 2699.3. The answer to both of those questions is yes, as a matter of law.
13
Therefore, Plaintiff may recover penalties under the PAGA for all of Adecco's employees, all
14
Colleagues and all Associates that suffered similar violations of the I.abor Code. Huff, 2018 WL
15
2328672 at "3 ("An Employee Affected By At Least One Labor Code Violation May Pursue
16

I7
Penalties On Behalf Of The State For Unrelated Violations By The Same Employer. ") . Accordingly,

18 Plaintiff's Motion for Summary Adjudication as to the scope of aggrieved employees and as to

19 whether Plaintiff has satisfied the applicable administrative prerequisites.

20 ARGUMENT
21
I. Whether Adecco's Associates Are "A Different Class Of Employee" Is Irrelevant
22 To The Question Of Whether They Have Suffered The Labor Code Violations
Alleged In PlaintifPs Complaint.
23
The fact that Adecco's Associates are "a different class of employee" according to Adecco is
24
irrelevant to the issue of whether they are "aggrieved employees" within the meaning of the PAGA.

26 The definition of "aggrieved employee" is simply not susceptible to subjective interpretation, An

aggrieved employee is "any person who was employed by the alleged violator and against whom one
28 3

PLAINTIFF'S REPLY MEMORANDUMOF POINTS AND AUTIIORITIES IN SUPPORT OF
PLAINTIFF' MOTION FOR SUMMARYADIUD ICATION
Rachel Mcniz v. zl decccUSzt,Inc., Case No. 17CIVO I 736
I
or more of tlte alleged violations was committed." Cal. Labor Code] 2699(c) (emphasis added).

This case, which Adecco has continually referred to as a "class" even in itsopposition to Plaintiff's

3 Motion, is not a class action. Plaintiff Moniz represents the state of California in recovering penalties

4 for violations of the California Labor Code committed by Adecco. The California court of appeals

correctly held that "it would make little sense to prevent a PAGA plaintiff (who is simply a proxy for
6
state enforcement authorities) from seeking penalties for all the violations an employer committed."
7
Huffv. Securilas Securily Services USA, lnc. (Cal. Ct. App., May 23, 2018, No. H042852) 2018 WL
8

2328672 at *5 (emphasis added).

10 In its opposition to Plaintiffs Motion Adecco makes much of the fact that "Associates are an

11 entirely different class of employee than Colleagues" and that "Ms. Moniz herself was never an

Associate at Adecco." See Adecco's Mem. of Pts. And Authorities ln Opposition To Pl.'s Mot. for
13
Summary Adjudication (June 8, 2018) [hereinafter Adecco's Opposilion] at 1. Those facts are
14
irrelevant to the Court's consideration of the statutory definition of "aggrieved employee."
15
The facts of Huff are directly analogous to the facts here. In Huff the defendant sought to
16

I7
prevent the plaintiff, a full-time employee, from seeking penalties for violations of the Labor Code

18 suffered by temporary employees. Id. at ~2. The appellate court correctly dismissed that argument,

19 finding that it would be contrary to the purpose of the PAGA to limit the penalties recoverable by the

state of California to those personally suffered by the plaintiff. '"'[t]he proposition that PAGA allows
21
an employee to pursue penalties only for the type of violation he or she has suffered is directly at
22
odds with the provision that an action may be brought by an employee against whom 'one or more'f
23
the alleged violations was committed." Id. at *4. Yet that is exactly what Adecco contends in its
24
motion for summary adjudication. See Adecco's Mem. Of Pts. And Authorities In Support of

26 Summary Adjudication (May 11, 2018) at I ("Adecco' position is that the scope of the PAGA class

must be limited to the group of persons who were employed by Adecco as "Colleagues" and were

PLAINTIFF'S REPLY MEMORANDUMOF POINTS AND AUTIIORITIES IN SUPPORT OF
PLAINTIFF' MOTION FOR SUMMARYADJUD ICATION
Rachel Irtonis v. AdecccUSA, Inc., Case No. 17CIVOI736
required to execute the same specific Employment Agreement for Colleagues executed by Ms.
1

Moniz.").

3 Despite the clear weight of authority, Adecco inexorably marches forward with its flawed

4 understanding of this issue. See Adecco's Opposition at 1 ("Ms. Moniz's attempt to represent
5
Colleagues who signed different agreements than she did should be denied."). The law is clear that
6
the scope of "aggrieved employees" in this case is any employee of Adecco, including all Colleagues
7
and Associates, that suffered violations of Labor Code sections 232, 1197.5, 232.5, 1102.5, and
8

432,5. Huff, 2018 WL 2328672, at *5.

10 A. Whether Adecco's Confidentiality Agreements For Associates Actually Violate
The Labor Code Is Irrelevant To The Issue Of The Scope Of Aggrieved
Employees.

12 Finally, Adecco argues in its opposition to Plaintiff's Motion that "[a]llowing Ms. Moniz to
13
represent a class [sic.] of aggrieved persons that includes Associates would [] defeat the entire
14
purpose of a representative action" because the agreements contain different language and would
15
therefore need to be analyzed differently in terms of whether they violate the Labor Code sections at
16
issue in this case. zf decco 'sOpposi ti on at 10. Therefore, Adecco argues, "the Court should at least
7

18 confine the class [sic.] of aggrieved persons in this case only to Adecco Colleagues." Id. This

19 argument is an irrelevant and premature non sequitur. As described above, the fact that Adecco's

Associates in California are classified differently by Adecco and are subject to different agreements
21
than Adecco's Colleagues does not change whether they are aggrieved employees, e.g, employees of
22
Adecco against whom one or more of the alleged violations was committed. Huff, 2018 WL
23
2328672, at *5 ("The idea that a plaintiff must be aggrieved of all the violations alleged in a PAGA
24
case does not flow logically fiom the fact that a plaintiff is standing in for government authorities to

26 collect penalties paid (in large part) to the state"). Whether the agreements Adecco's Associates

were forced to sign actually violate the sections of the Labor Code at issue is outside the scope of the
28 5
PLAINTIFF'S REPLY MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARYADJUDICATION
Rachel Mcniz v. Adeccc USA, inc., Case No. 17CIY01736
issues to be decided by summary adjudication. Plaintiff looks forward to proving, at trial, that all of
1

Adecco's employees forced to sign the employment agreements at issue suffered violations of
sections 232, 1197.5, 232,5, 1102.5, and 432.5 of the Labor Code.

4 II. Plaintiffs Pre-Suit PAGA Notice Clearly Identifies Labor Code Violations
Suffered By All Of Adecco's California Employees.

6 In Plaintiffs Motion for Summary Adjudication, Plaintiff described the statutory requirements

7 for a prospective plaintiff's pre-suit notice under the PAGA, which require only that a plaintiff

provide "1) the specific provisions of the Labor Code alleged to have been violated, and 2) the facts
9
and theories to support the alleged violation." Cal. Labor Code II 2699.3. Plaintiffs pre-suit PAGA
10
notice does just that; it identifies the five Labor Code sections that Adecco has violated by virtue of
ll
its employment agreements, and describes the specific protected conduct contemplated by the Labor
12
Code that Adecco's California employees are prevented from engaging in by virtue of their

14 employment agreements with Adecco. "We intend to file a complaint against Adecco on behalf of

15 itfs.itfoniz and all current and former employees, including but not limited to "Colleagues," who

worked for Adecco in California." Pl.'s Pre-Suit PAGA Notice Letter (Feb. 1, 2016), Exhibit 2 to
17
Bates Decl., Pl.'s SSUF No. 15. Ms. Moniz's experience as a Colleague is framed exactly as the
18
PAGA intended —as an example of the complained-of Labor Code violations. Adecco cannot use the
19
specificity by which the Labor Code violations suffered by Ms. Moniz are described (an argument
20
that, ironically, strengthens Plaintiff's argument as to the sufficiency of her pre-suit notice) as a shield

22 to protect itself from liability for those violations affecting all of its California employees, Huff, 2018

23 WL 2328672, at *4.

24 The Of California Authority That Plaintiff's Pre-Suit
A. Weight Demonstrates
25 Notice Is More Than Adequate Under The PAGA.

26 "Under California's Labor Code, a written notice is sufficient so long as it contains some basic

facts about the violations, such as which provision was allegedly violated and who was allegedly
28 6
PLAINTIFF'S RFPLY MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARYADJUDICATION
Rachel Moniz v. Adecco USA, Inc, Case No. 17CIV01736
harmed." Green v. Bank of Am., NA., No. 13-56023, 2015 WL 9259065, at *2 (9th Cir. Dec. 18,

2015) (footnote omitted). Courts have recognized the danger in adding unstated requirements onto

3 the Labor Code's existing notice requirements: "The court declines to read into (j 2699.3 any

4 additional requirements that would nullify Plaintiffs good faith attempt to administratively exhaust its
5
PAGA claims by meeting the statute's requirements." Hamilton v. Genesis Logistics, Inc. (C.D. Cal.,
6
June 20, 2013, No. CV 13-0184827 DDP VBKX)2013 WL 3168373 at *5.
7
The Central District of California considered this exact issue in Cardenas v. McLane Food
8

Services, Inc., 796 F.Supp.2d 1246 (C.D. Cal. 2011). In Cardenas, the defendant argued, as Adecco

10 does here, that the plaintiff's claims in litigation should be limited because the plaintiffs pre-

11 litigation PAGA notice was insufficiently detailed. The Cardenas Court rejected that argument,

finding it "absurd" and that it "would undermine the principles of the PAGA." The Cardenas Court
13
held as follows:
14
MFI offers no authority suggesting that PAGA's requirement that employees provide
15 in their notice "facts and theories to support [an] alleged violation" necessitates
inclusion of every potential fact or every future theory. To the contrary, the plain
16 meaning of those words suggests that Plaintiffs were required to put forward
17
sufficient facts to support their claims of labor violations by MFI. Indeed, MFIdoes
not dispute that they did so. Instead, MFI seeks to bind Plaintiffs to those facts and
18 theories exactlv as laid out — even though, of course, no discovery has yet occurred,
since Plaintiffs could not file suit until providing notice to NWLA and determining if
19 the agency would investigate. Such a result is absurd and would undermine the
principles of PAGA.
20
Cardenas v. McLane FoodServices, Inc., 796 F. Supp. 2d 1246, 1260 (C.D. Cal. 2011)
21

22 (emphasis added).

23 8. Even Under Adecco's Cases, Which Are Outdated And Inapposite, Plaintiffs Pre-
Suit PAGA Notice Compiles With The Relevant Administrative Requirements.
24
Bradescu and Stoddart, the two cases cited by Adecco, are outdated and unpersuasive. They
25

26
z
Brodesctt v.Htllstone Rest Grp., Inc., No. SACV 13-1289-GW RZX, 2014 WL 5312546, (C.D. Cal. Sept. 18, 2014),
27 order confirmed, No. SACV 13-1289-GW RZX, 2014 WL 5312574 (C.D. Cal.Oct. 10, 2014).
'toddort v. Express Servs., Inc., No. 2:12-CV-01054-1

Case Info

Judge

Weiner, Marie S. Track Judge’s New Case

Case No.

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Document Filed Date

June 15, 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-Secondary: RACHEL MONIZ vs ADECCO USA, INC.

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