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1 JOHN M. SCHEPPACH (BAR NO. 240633)
Email: jmscheppach@sbpc.law Electronically Filed
2 THOREY M. BAUER (BAR NO. 234813) 10/21/2020 11:09 AM
Email: tbauer@sbpc.law Superior Court of California
3 SCHEPPACH BAUER PC
23181 Verdugo Drive, Suite 105-A County of Stanislaus
4 Laguna Hills, CA 92653 Clerk of the Court
Phone: (949) 209-8880 By: Kimberly Mean, Deputy
5 Fax: (949) 358-7884
6 Attorneys for Defendant $90 PD
SENSIENT NATURAL INGREDIENTS LLC
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF STANISLAUS
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11 CALVIN AGAR, an individual and on Case No. CV-19-001906
behalf of all others similarly situated, Assigned: Judge Stacy P. Speiller
12 Dept: 22
Plaintiffs,
13 DEFENDANT’S NOTICE OF MOTION
v. AND MOTION TO STAY ACTION
14 UNTIL CONCLUSION OF WRIT
SENSIENT NATURAL INGREDIENTS PROCEEDINGS; MEMORANDUM IN
15 LLC, a Delaware limited liability company; SUPPORT THEREOF
and DOES 1 through 50, inclusive;
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Defendants. Hearing:
17 Date: November 13, 2020
Time: 8:30 a.m.
18 Dept.: 22
19 2nd Amended Compl. Filed: March 17, 2020
Trial Date: None Set
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DEFENDANT’S NOTICE OF MOTION AND MOTION TO STAY ACTION
1 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on November 13, 2020, at 8:30 a.m., or as soon
3 thereafter as the matter may be heard, in Department 22 of the above-captioned Court,
4 located at 801 10th Street, Modesto, California 95354, Defendant Sensient Natural
5 Ingredients LLC (“Sensient”) will and hereby does move the Court for an order staying
6 this action until the conclusion of the appellate writ proceedings (the “Motion to Stay
7 Action”).
8 This Motion to Stay is made upon each of the grounds specified in the notice and
9 the attached memorandum, the complete records and files for this action, and any
10 argument or evidence presented before or at the time of the hearing on the motion.
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12 Dated: October 21, 2020 SCHEPPACH BAUER PC
JOHN M. SCHEPPACH
13 THOREY M. BAUER
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By:
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JOHN M. SCHEPPACH
16 Attorneys for Defendant
SENSIENT NATURAL
17 INGREDIENTS LLC
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DEFENDANT’S NOTICE OF MOTION AND MOTION TO STAY ACTION
1 MEMORANDUM
2 I. INTRODUCTION.
3 This is a single-issue case involving employee wage statements. The issue
4 presented in this case is whether it was legal or unlawful for Defendant Sensient Natural
5 Ingredients LLC ("Sensient") to represent overtime on wage statements as the extra
6 compensation that an employee receives for working overtime, i.e., 50 percent of the
7 regular rate. According to Sensient, this practice is perfectly valid. According to Plaintiff
8 Calvin Agar ("Plaintiff"), this practice is forbidden. The statutory language at issue --
9 Labor Code section 226(a)(9) -- must be interpreted to decide who is right and who is
10 wrong. To date, no California appellate court has decided the issue. It is one of first
11 impression. Accordingly, Sensient is filing a writ to the California Court of Appeal, Fifth
12 Appellate District, at the end of October 2020 in hopes of obtaining an appellate decision
13 on the issue. Sensient respectfully requests that, until its appellate writ proceedings are
14 exhausted, the proceedings in the Superior Court should be stayed.
15 II. BRIEF BACKGROUND.
16 Labor Code section 226(a)(9) is part of California's wage statement statute – a law
17 which specifies the content that must be shown on wage statements that employers issue
18 to their employees. Labor Code section 226(a)(9) requires wage statements to show "all
19 applicable hourly rates in effect during the pay period and the corresponding number of
20 hours worked at each hourly rate by the employee."
21 The operative pleading in this action alleges a single cause of action involving
22 Labor Code section 226(a)(9). The issue presented in this case – which is raised squarely
23 in Plaintiff's pleading and in the briefing recently submitted to the Court in connection
24 with Sensient's demurrer – is this: "Defendant identifies overtime rates on the wage
25 statements it issues its employees as 0.5x the regular rate of pay, instead of 1.5x the
26 regular rate of pay." (Scheppach Decl. ¶ 4, Ex. 4, Plaintiff's Opp. Brief To Demurrer, p. 5,
27 lines 8-9.) According to Plaintiff, this violates Labor Code section 226(a)(9) "as a matter
28 of law." (Scheppach Decl. ¶ 4, Ex. 4, Plaintiff's Opp. Brief, p. 9, line 5.) According to
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DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION TO STAY ACTION
1 Sensient, as a matter of law, it does not.
2 The issue presented is one of first impression – no California appellate court has
3 interpreted Labor Code section 226(a)(9) and decided whether Sensient's or Plaintiff's
4 interpretation of the law is correct. Under Sensient's interpretation, the statute is flexible:
5 overtime can be represented as either (i) the extra pay the employee receives for overtime
6 hours worked that is equal to one-half or 50% of the employee's regular rate (0.5x) or (ii)
7 as the aggregate pay (the total amount) the employee receives during overtime hours that
8 is equal to one-and-one-half times the employee's regular rate (1.5x). Under Plaintiff's
9 interpretation, by contrast, only the latter representation style is lawful. It is clear that the
10 parties need a definitive interpretation of the statute in order to resolve this case.
11 In ruling on and denying Sensient's demurrer, this Court noted that it would follow
12 "only primary authority." (Scheppach Decl. ¶ 6, Ex. 5.) Sensient is preparing a writ to the
13 Court of Appeal, and it will be filed on or before October 30, 2020. (Scheppach Decl. ¶
14 9.) Sensient hopes to obtain the very primary authority necessary to resolve this case.
15 This case has been designated as complex. (Scheppach Decl. ¶ 3, Ex. 3.) In
16 discovery to date, Sensient has explained how many wage statements have been issued
17 which reflect overtime in the manner challenged by Plaintiff (20,429), to how many
18 different employees these wage statements have been issued (432), and the job positions
19 they have occupied. (Scheppach Decl. ¶ 7.)
20 Plaintiff has represented to the Court that he intends to continue on with discovery,
21 including seeking the contact information for the 432 individuals who were issued the
22 wage statements. (Scheppach Decl. ¶ 8, Ex. 7, Plaintiff's CMC Statement, page 4.)
23 Plaintiff has also represented to the Court that he desires to proceed with trial and will be
24 ready to do so within 12 months of the operative pleading (i.e., by March 2021).
25 (Scheppach Decl. ¶ 8, Ex. 7, Plaintiff's CMC Statement, page 2.)
26 If Superior Court proceedings, including discovery and motion practice, were
27 allowed to continue to trial, Sensient would be forced to incur significant costs in
28 defending against the matter, and significant judicial resources would also be expended at
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DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION TO STAY ACTION
1 the Superior Court, all of which could be avoided if Sensient obtains an appellate
2 interpretation of the statutory provision at issue. (Scheppach Decl. ¶ 10.)
3 There is no valid or compelling reason to incur any additional time or expense in
4 Superior Court proceedings when the single issue raised by the case could be definitively
5 resolved by the Court of Appeal in Sensient's writ. A brief stay of proceedings in Superior
6 Court – while appellate writ proceedings are exhausted – should be granted.
7 III. A BRIEF STAY SHOULD BE ISSUED.
8 Superior Courts have statutory and inherent authority to regulate court business, to
9 regulate proceedings before them, and to effect the orderly disposition of their matters.
10 (Code Civ. Proc., § 128; Schimmel v. Levin (2011) 195 Cal.App. 4th 81, 87.) Such power
11 includes the power to stay actions. (Freinberg v. City of Mission Viejo (1995) 33
12 Cal.App.4th 1484, 1489 [“[T]rial courts generally have the inherent power to stay
13 proceedings in the interests of justice and to promote judicial efficiency”]; Oto, L.L.C. v.
14 Kho (2019) 8 Cal.5th 111, 141 [“[A] court ordinarily has inherent power, in its discretion,
15 to stay proceedings when a stay will accommodate the ends of justice,” and “the power to
16 stay proceedings is incidental to the power inherent in every court to control the
17 disposition of the causes on its docket with economy of time and effort for itself, for
18 counsel, and for litigants,” internal quotations omitted].) Such power also includes the
19 power to stay discovery. (Bar Ass'n of San Diego v. Superior Court (1923) 64 Cal.App.
20 590, 593-594; Rosemont v. Superior Court (1964) 60 Cal.2d 709, 714 [noting the "broad
21 discretionary powers" that Superior Courts retain over discovery].)
22 Sensient respectfully requests that the Court exercise its authority to stay
23 proceedings for a brief period of time while Sensient pursues its appellate writ. Because
24 the writ, if taken by the Court of Appeal, will address and resolve the issue presented in
25 this case, a stay of Superior Court proceedings will enable Sensient (and the Superior
26 Court) to avoid unnecessary expenditures of time and expense. (See Cal. Rules Of Court,
27 Rule 3.400(a) [in cases designated complex, such as this one, judicial management should
28 be exercised to "avoid placing unnecessary burdens on the court or the litigants" and to
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DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION TO STAY ACTION
1 "keeps costs reasonable"].)
2 Moreover, appellate writs are decided expeditiously in significantly quicker fashion
3 than traditional appeals. (Jasper Constr. Inc. v. University Casework Systems, Inc. (1974)
4 39 Cal.App.3d 582, 587 [noting that writ review is "much more speedy" than an appeal].)
5 Accordingly, the period of stay will be brief, likely a few months at most.
6 Finally, in light of the single-issue nature of this case and the discovery that
7 Sensient has already provided to Plaintiff, Plaintiff will not be prejudiced by a brief stay.
8 Indeed, Plaintiff should have an equal interest in expeditiously obtaining primary authority
9 that resolves the issue in this case.
10 IV. CONCLUSION.
11 For all these reasons, Sensient respectfully requests that the Court enter a brief stay
12 while Sensient seeks an appellate writ which may bring finality to these proceedings.
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14 Dated: October 21, 2020 SCHEPPACH BAUER PC
JOHN M. SCHEPPACH
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THOREY M. BAUER
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17 By:
JOHN M. SCHEPPACH
18 Attorneys for Defendant
SENSIENT NATURAL
19 INGREDIENTS LLC
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DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION TO STAY ACTION
1 PROOF OF SERVICE
2 I am employed in the County of Orange, State of California. I am over the age of
eighteen (18) and am not a party to this action. My business address is 23181 Verdugo
3 Drive, Suite 105-A, Laguna Hills, California 92653.
4 On October 21, 2020, I served the within document(s) described as:
5 DEFENDANT’S NOTICE OF MOTION AND MOTION TO STAY
ACTION UNTIL CONCLUSION OF WRIT PROCEEDINGS;
6 MEMORANDUM IN SUPPORT THEREOF
7 on the interested parties in this action as stated below:
8 DIVERSITY LAW GROUP, P.C. POLARIS LAW GROUP LLP
9 Larry W. Lee, Esq. William L. Marder, Esq.
lwlee@diversitylaw.com bill@polarislawgroup.com
10 Max W. Gavron, Esq. 501 San Benito Street, Suite 200
mgavron@diversitylaw.com Hollister, California 95023
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515 S. Figueroa Street, Suite 1250
12 Los Angeles, California 90071
13 Attorneys for Plaintiff Calvin Agar Attorneys for Plaintiff Calvin Agar
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16 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a true copy of
the document to be sent to the persons at the corresponding electronic address as
17 indicated above on the above-mentioned date. I utilized One Legal e-services to
accomplish said electronic transmission.
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19 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on October 21, 2020, at Laguna Hills, California.
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22 John M. Scheppach
(Type or print name) (Signature of Declarant)
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PROOF OF SERVICE