Motion for Summary Adjudication in IN RE: MOBILEONE WAGE AND HOUR CASES| Trellis.Law

On May 22, 2019 a Motion-Secondary was filed involving a dispute between Chess, Kiki, Ly, Vivian, and Mobileone, Llc, An Arizona Limited Liability Company, for Complex Civil Unlimited in the District Court of San Mateo County.

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SHEPPARD MULLIN RICHTER & HAMPTON LLP
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By
11/27/201 9
Depuﬂﬂclk

GREGG A. FlSCI—I, Cal. Bar No. 214486
gﬁsch@sheppardmullin.com
Y. DOUGLAS YANG, Cal. Bar No. 307550
“
dyang@sheppardmullin.com
MICHAELA GOLDSTEIN, Cal. Bar N0. 3 16455
mgoldstein@sheppardmullin.com
1901 Avenue ofthe Stars, Suite 1600
Los Angeles, California 90067-6055
Telephone: 310.223.3700
Facsimile: 310.228.3701

Attorneys for Defendant
MOBILEONE, LLC
\DOO‘AON

SUPERIOR COURT OF THE STATE 0F CALIFORNIA

10 COUNTY OF SAN MATEO
11 COMPLEX CIVIL LITIGATION
12 In re MOBILEONE WAGE AND HOUR Judicial Council Coordination Proceedings
CASES, No. JCCP 5039
13
Coordinated Proceeding Special Title Assigned For All Purposes To:
14 (CRC Rule 3.550) The Honorable Marie S. Weiner, Department 2

15 DEFENDANT MOBILEONE LLC’S
REPLY IN SUPPORT 0F MOTION FOR
16 C.C.P. § 437c(t) SUMMARY
ADJUDICATION OF LEGAL ISSUES
17

18 Hearing date: December 16, 2019
Time: 10:00 am.
l9
Consolidated Complaint Filed: Sept. 6, 2019
20 Kiki Chess Complaint Filed: May 30, 2018
Vivian Ly Complaint Filed: October 19, 201 8
21

SMRHI4835-4'r'l 14997.4 REPLY ISO C.C.P. §437c(t) SUMMARY ADJUDICATION MOTION
TABLEOFCONTENTS
Page

I. INTRODUCHON 4
.......................................................................................................... ........

H. ARGUMENT 5
................................................................................................................. ........

A. The Cannon Settlement Covered All Claims For Wages, For Whatever
Reason, Regardless Of Whether A Class Member Was Allegedly
\qumm-hwm

5
Misclassiﬁed .......................................................................................................
........

B. The Res Judicata Doctrine Is Broad In Scope and Bars Plaintiff Chess From
Seeking Claims, Damages, and Penalties As To Cannon Class Members
Who Plaintiff Chess Alleges Were Misclassiﬁed. ............................................. ........ 7

1H. CONCLUSKMJ 9
.............................................................................................................. ........

,2‘
smmsmw 14997.4 REPLY 150 c.c.P. § 437cm SUMMARY ADJUDICATION MOTION
TABLE OF AUTHORITIES

Page(s)
Cases

Amin v.Khazindar
1 12 Cal. App. 4th 582 (2003) ....................................................................................................... 8

DOO'HJO‘uLII-RLIJM—

City 0f Oakland v. Oakland Police and Fire Ret. Sys.
224 Cal. App. 4th 210 (2014) ....................................................................................................... 7

Jeﬁersorz v. Dep ’t
0f Youth Auth.
28 Ca1.4th 299 (2002) ................................................................................................................... 5

Lesm‘k v. Eisenmann SE
374 F. Supp. 3d 923 (ND. Cal. 2019) ......................................................................................... 5

Matthew Maurice Cannon, et al., v.MobileOHe LLC
Case No. 34 2015-00179159-CU-0E-GDS 9
............................................................. 4,
5, 6, 7, 8,

Shine v. Williams-Sonoma, Inc.

23 Cal. App. 5th 1070 (2018) ................................................................................................... 7,
8

Silverado Modjeska Recreation & Park Dist. v. Orange
197 Cal. App. 4th 282 (201 1) ....................................................................................................... 8

Villacres v. ABM Indus. Inc.
189 Cal. App. 4th 562 (2010) ....................................................................................... 5,
6, 7, 8, 9

Statutes
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Cal. Code Civ. Proc. § 382 ................................................................................................................. 7

California Business and Professions
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Code § 17200 ........................................................................... 9

California Labor Code § S 10 .......................................................................................................... 5, 6

-3,
SMRH=4835471 149914 REPLY Iso C.C.P. §437c(t) SUMMARY ADJUDICATION MOTION
I. INTRODUCTION
Any wage-and-hour claims asserted on behalf of any Class Member in Cannon,‘ through the

July 5, 201 6 date of the Final Judgment, must be summarily adjudicated as having been already

released by those individuals, many of whom are putative class members in the instant action.

While Plaintiff Kiki Chess (“Plaintiff Chess”) might be correct that the Cannon plaintiffs would

not have been able to represent a class of allegedly misclassiﬁed exempt managerial employees,

that issue is irrelevant and need not be considered here. Instead, itis clear that the Cannon Court
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held that the Cannon Plaintiffs were proper class representatives for the certiﬁed class and that the

Class Members could, and did, properly release all of the speciﬁed claims. As a result, all 877

10 Class Members in Cannon — which include Plaintiff Chess and many other putative class members

11 in this action — were subj ect to the release set forth in the Settlement Agreement. Thus, contrary to

12 Plaintiff‘s incorrect and misleading assertions, Plaintiff Chess and the other Class Members

l3 expressly released “all claims for unpaid wages,” including all claims they potentially could assert

14 “arising under the California Labor Code,” through the July 5, 2016 Final Judgment date?

15 Simply put, it does not matter why the individuals were included in the Settlement Class,

16 because those individuals (including Plaintiff Chess) who were deemed Class Members did, in

17 fact, release all of those claims through July 5, 201 6. Thus, even if Plaintiff Chess and some other

18 Cannon Class Members stillpotentially might be able to assert claims against Defendant

l9 MobileOne LLC (“MobileOne”) in this action (if they were employed by, and potentially have

20 claims against, MobileOne atany time after July 5, 2016), any such claims would be limited to

21 those applicable to the time period after July 5, 2016 (in addition t0 anyone else who was not part

22 of the Cannon Settlement Class potentially being able to assert claims for any time when they were

23 employed with MobileOne, no matter what time period applies). Consequently, the Court should

24 rule that all Cannon Class Members who also are putative class members in this action have

26
I
The earlier-resolved class action matter entitled Matthew Maurice Cannon, er 01.. v.

MobileOrze LLC, Case No. 34 2015-00179] 59-CU-OE-GDS.
27 2
In addition to ﬁling an Opposition, Plaintiff Chess ﬂied a Separate Statement 0f Additional

28 Facts. This additional ﬁling is a mere interpretation by Plaintiff Chess 0f her view 0f the facts in
this case; the additional facts do not change the analysis or outcome of MobileOne’s Motion.

-4-
SMRHI4835-47l 1-7997-4 REPLY ISO C.C.P. § 437c(t) SUMMARY ADJUDICATION MOTION
ﬂ released all claims at issue in this case through July 5, 2016, and resjudicata precludes Plaintiff

Chess from attempting to include those released claims in the present lawsuit.

H- A_RQEMIH‘J—T

A. The Cannon Settlement Covered All Claims For Wages, For Whatever

Reason, Regardless 0f Whether A Class Member Was Allegedly Misclassiﬁed.
\DOOMmM-SBDJN

In her Opposition, Plaintiff Chess argues, without citation to any on—point case law, that

the Cannon Settlement Agreement cannot apply to putative class members in the instant action

who were classiﬁed as exempt because (l) the Cannon plaintiffs were non-exempt employees;

(2) the Cannon Complaint did not assert a misclassiﬁcation claim; (3) the Cannon Settlement did

not include exempt employees within its ambit; and (4) the Cannon Court “did not analyze any

claim for misclassiﬁcation of exempt status." These arguments are without merit and miss the

point entirely; Plaintiff Chess and each of the other Cannon Class Members fully and completely

released, through July 5, 2016, “all claimsfor unpaid wages, including, but not limited ta, .. .all

such claims arising under the California Labor Code.” (SUF 8; Exhibit C) (emphasis added).

Under California law, “[a] clause providing for the release of claims may refer to all claims

raised in the pending action, or it may refer to all claims, bath potential and actual, that may have

been raised in the pending action with respect to the matter or controversy.” Villacres v. ABM
Indus. Ina, 189 Cal.
NNNNNNNMNv-‘I—‘r—‘HHHHH—u—n
App. 4th 562, 586 (2010) (internal quotes omitted) (emphasis added). Courts

read settlement agreement releases broadly and afford
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them with “comprehensive scope.”

Dep’t onouth Awh, 28
'

Jefferson v. Cal.4th 299, 306 (2002) (recognizing that “the release of ‘all

claims and causes of action’ must be given a comprehensive scope”).

Here, the Cannon Settlement Agreement unambiguously releases “all claims for unpaid

wages,” including “all such claims arising under the California Labor Code” — regardless of the

legal theory underlying why, or how, claims for such unpaid wages arise. The release language in

the Cannon Settlement Agreement isvery broad; “[t]he release is unambiguous. The word

‘including’ in the release does not mean ‘limited to.” Lesnik v. Eisenmann SE, 374 F. Supp. 3d

923, 955 (ND. Cal. 2019) (emphasis in original) (interpreting California law concerning releases).

A misclassiﬁcation claim under California law is a creature of Section 510 of the California Labor

,5-
SMRHi4S35'471 1-7991“ REPLY ISO C.C.P. § 437c(t) SUMMARY ADJUDICATION MOTION
Code. See Cal. Lab. Code § 510. Thus, Plaintiff Chess’ misclassiﬁcation claims, and any

damages potentially arising therefrom, are, by deﬁ nition, released through the Cannon Settlement,

up to and including any that could be asserted through July 5, 201 6. Villacres, 189 Cal. App. 4th

at 586. Notably, Plaintiff Chess currently seeks to represent, in addition to allnon-exempt

employees, exempt employees allegedly misclassiﬁed at any time since May 30, 2014 — long

before the date the Cannon Settlement’s release ended on July 5, 2016. (SUF 23; Consolidated
\OOOHJO‘LJIh

Complaint, at p. 4). Plaintiff Chess herself claims to have been misclassiﬁed from at least June 1,

201 6 — again before the Cannon Settlement's terminal release date of July 5, 2016. (Pla. Opp. at

5:1-5). Ultimately, the terms of the approved Cannon Settlement and release, rather than the

10 allegations set forth in the Cannon Complaint, control as to the breadth of the release given by the

11 Cannon Class Members. Villacres, 189 Cal. App. 4th at 586. Plaintiff Chess’ arguments t0 the

12 contrary are unfounded and unsupported by controlling caselaw concerning the scope of releases.

13 In addition, in her Opposition, Plaintiff Chess appears to also argue that the Cannon

14 Settlement Agreement could not possibly encompass all claims for unpaid wages because the

15 Cannon Court allegedly failed t0 “analyze any claim for misclassiﬁcation of exempt status.” (Pla.

16 Opp. at 8: 10-1 1). This argument has no basis and is nothing less than an extremely untimely

17 objection to the terms 0f the Cannon Settlement. Plaintiff Chess had her opportunity to seek to

18 expand the reach of the Cannon action, opt out of the Settlement Class, or object to the scope 0f

19 the release provided under the Cannon Settlement, but chose not to do so. (SUF 17-1 8, 24). She

20 cannot now be allowed to belatedly challenge the Cannon Court’s judgment in approving the

21 Cannon Settlement Agreement and the applicable release thereunder. The Cannon Court held that

22 the Cannon Plaintiffs were proper class representatives for the certiﬁed class and that the Class

23 Members properly released all of the speciﬁed claims, including those covered in this action.

24 Because the scope of the Cannon Settlement Agreement’s release is very broad and

25 comprehensive, itincludes (and therefore precludes) all claims, through July 5, 2016, that

26 potentially are asserted in the instant matter on behalf of Plaintiff Chess and any putative class

27 member who was a Cannon Class Member.

-6-
SMRH24835471 1—79914 REPLY ISO C.C.P. §437c(t) SUMMARY ADJUDICATION MOTION
B. The Res Judicam Doctrine Is Broad In Scope and Bars Plaintiff Chess From

Seeking Claims, Damages, and Penalties As To Cannon Class Members Who

Plaintiff Chess Alleges Were Misclassified.

.p Plaintiff Chess’ Opposition asserts that her present misclassiﬁcation claim is not subject to

resjudicara preclusion because that claim “could not have been asserted by the Cannon Class

Representatives as they themselves were never classiﬁed as an exempt managerial employee at

any time during their employment with MobileOne.” Plaintiff Chess also
\OOOHJON'JI

(Pla. Opp. 9:8-10).

claims that resjudicata should not apply because she was not a lead plaintiff in Cannon, but a

Class Member. Plaintiff Chess’ arguments are incorrect, and they reﬂect a misunderstanding 0f

10 the nature of a class action settlement generally, and, speciﬁcally, the one approved in Cannon.

11 A class action is a procedural device used “when the parties are numerous, and it is

12 impracticable to bring them all before the court." Cal. Code Civ. Proc. § 382. In such a situation,

“one or more .” Resjudicata
13 may sue or defendfor the beneﬁt ofal 1d. (emphasis added).

14 applies to class actions with equal force as to individual actions. See generally Shine v. Williamso

15 Sonoma, Ina, 23 Cal. App. 5th 1070 (2018). Thus, its preclusive effect applies regardless of

16 whether Plaintiff Chess was a lead plaintiff or a Class Member of the Cannon Settlement. 1d.

17 Plaintiff’s argument that resjudicata cannot apply because no misclassiﬁcation claim was

18 asserted in the Cannon lawsuit and because the Cannon lead plaintiffs were not classiﬁed as

l9 exempt employees is a complete red herring and irrelevant here. As stated in MobileOne’s

20 moving papers, under California law, resjudicata has three elements: (1) both lawsuits “involve

21 the same ‘cause of action,’ which California courts determine under the ‘primary right theory’”;

22 “a ﬁnal judgment on the merits”; and (3) “the parties in the
(2) the prior litigation resulted in

23 second lawsuit [are] the same (or in privity with) the parties to the ﬁrst lawsuit.” City Oankland

24 v. Oakland Police and Fire Ret. Sys. ,
224 Cal. App. 4th 2 10, 228 (2014). Plaintiff Chess disputes

25 the applicability of the ﬁrst prong ofthis analysis, but, simply put, she iswrong and her assertion

26 has no support. Under the ﬁrst prong of the California resjudicata analysis, “the primary right is

27 simply the plaintiffs right t0 befreefrom the particular injury suffered.” Villacres, 189 Cal.

28 App. 4th at 577. “The violation 0f one primary right constitutes a single cause 0f action, though it

-7-
5MRH14335‘471 “7997-4 REPLY ISO C.C.P. § 437c(t) SUMMARY ADJUDICATION MOTION
may entitle the injured party to many forms 0f relief, and the relief is not to be confounded with

the cause of action, one not being determinative of the other.” Id. Further, a prior judgment is res

judicata as to “matters which were raisad 0r could have been raised, on matters litigated or

litigable.” Id. at 576 (quoting Amin v. Khazindar, 112 Cal. App. 4th 582, 589-90 (2003)).

There is n0 dispute that the particular injury alleged to be suffered by Plaintiff Chess and
HONU‘I-D

some members of the putative class isthe purported underpayment of wages, at least in part due

t0 misclassiﬁcation, as well asfailure to provide meal periods am! rest breaks, failure to provide

W vacation wages, (mdfailure to payfor sick time, among other legal theories. Fundamentally,

res judicata applies here even though Cannon was a different action that involved claims for

10 different types of wages. See Shine, 23 Cal. App. at 1077 (“The fact that no claim for reporting-

11 time pay was alleged in Morales [the previously settled class action] does not alter our

12 determination that the same primary right, to seek payment of wages due, was involved in both

13 Morales and this case.”). Itbears mentioning that Plaintiff Chess’ Opposition does not address

14 MobileOne’s citations t0 Villacres v.ABM Indus. Inc. or Shine v. Williams—Sanoma, Inc, both of

15 which are controlling and require this Court t0 ﬁnd that the Cannon Settlement release bars

16 Plaintiff Chess, and the other putative class members here who were Cannon Class Members,

17 from pursuing claims that were adjudged ﬁnal in Cannon and are covered by the applicable

13 Release Period, such that they cover those same individuals during the Release Period.

19 It cannot be properly disputed that both the Cannon lawsuit and Plaintiffs’ claims in this

20 action seek t0 litigate the “primary right" of payment for wages under the California Labor Code.

21 See, e.g.,Silverado Moaj‘eska Recrearion & Park Dist. v. Orange, 197 Cal. App. 4th 282, 297

22 (201 1) (holding that resjudicara barred environmental group’s allegation that county failed to

23 evaluate water impacts in supplemental environmental impact report, as directed by writ in earlier

24 proceeding; writ, which had been discharged already, involved same primary right to ensure

25 county’s compliance with California Environmental Quality Act). The Cannon Settlement

26 Agreement made clear that Class Members released both “any and all claims asserted in the

27 Complaint and any other claims that arise out of the same underlying factual allegations of the

28 Complaint that occurred during the Class Period,” as well as “all claimsfor unpaid wages,

_3_
SMRHZ4S35471 1-7997-4 REPLY ISO C.C.P. § 437c(t) SUMMARY ADJUDICAT‘ION MOTION
including, but not limited to, . .. all such claims arising under the California Labor Code .. .
;

the Wage Orders ofﬂze California Industrial Wdfare Commission; [and] California Business

and Professions Code section I 7200, et seq.” (SUF 7-8; Exhibit C, 1124) (emphasis added).
LARDJN

Since Plaintiff Chess did not take any timely action prior to the Cannon Court approving the Class

Settlement and broad-sweeping release, her ability t0 effectively do so now is completely

foreclosed. Villacres, 189 Cal. App. 4th at S69.

Thus, like the settlement agreement at issue in Shine, the Cannon Settlement Agreement

unambiguously dictates that the Class Members
\Oooﬂm

in Cannon, including Plaintiff Chess and many

other putative class members in this action, released all of their wage-and-hour claims against

10 MobileOne that potentially apply to the Release Period. Therefore, consistent with the rulings in

11 Shine, the doctrine of resjudicata bars Plaintiffs from pursuing claims and seeking redress for

12 alleged harms incurred by Class Members of the Cannon Settlement Class, including Plaintiff

13 Chess and many other putative class members in the instant action, occurring at any during the

14 Release Period, i.e.,up t0 and including July 5, 2016.

15 III. CONCLUSION
16 For all of the foregoing reasons and those set forth in the Motion, this Court should grant

17 MobileOne’s Motion for Summary Adjudication in its entirety and hold that Plaintiffs Kiki Chess

18 and Vivian Ly are precluded from pursuing claims and seeking redress for alleged harms incurred

19 by any of the Cannon Class Members, including for Plaintiff Chess, through July 5, 20 l 6.

21 Dated: November 27, 2019 SHEPPARD MULLIN RICHTER & HAMPTON LLP

23
GREGG A. FISCH
24 Y. DOUGLAS YANG
MICHAELA GOLDSTEIN
25 Attorneys for Defendant
MOBILEONE, LLC
26

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SMRHt483547l 14997.4 REPLY [so c.c.P. § 437cm SUMMARY ADJUDICATION MOTION
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time 0f service, I was over 18 years 0f age and not a party to this action. I

am employed in the County of Los Angeles, State 0f California. My business address is
333 South Hope Street, 43rd Floor, Los Angeles, CA 90071—1422.

0n November 27,
\OOOHJGNLh-P-UJNI—I

2019, I served true copies 0f the following document(s) described
as DEFENDANT MOBILEONE LLC’S REPLY IN SUPPORT 0F MOTION FOR
C.C.P. § 437c(t) SUMMARY ADJUDICATION 0F LEGAL ISSUES on the interested
parties in this action as follows:

SEE ATTACHED SERVICE LIST
DBY MAIL: I enclosed the document(s) in a sealed envelope 0r package
addressed to the persons at the addresses listed in the Service List and placed the envelo e
for collection and mailing, following our ordinary business practices. I am readily fami iar
with the ﬁrm's practice for collecting and processing correspondence for mailing. On the
same day that correspondence is piaced for collection and mailing, it is de osited in the
ordinary course of business with the United States Postal Service, in a sea ed envelope
with poztage fully prepaid. I am a resident or employed in the county where the malling
occurre .

IBY FEDEX: I enclosed said document(s) in an envelope 0r package provided by
FedEx and addressed to the ersons at the addresses listed in the Service List. I placed the

envelo e or package for col ection and overni ht delivery at an ofﬁce 0r a regularly
utilize drop box of FedEx or delivered such Eocumenﬁs) to a courier or driver authorized
by FedEx to receive documents.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed November 27, 2019, Los
NNNNNNMNNr—IHHw—H—t—n—nw—n—a

at Angeles, California.

OO‘JGUl-PUJNI—IOKOOOHOxUluhwmt—‘O

Camille M. Green

SMRH:4315-3332-4o70.l _ 1-
_i
SERVICE LIST

David Yeremian & Associates, Inc. United Employees Law Group, PC
David Yeremian Walter Haines
Roman Shkodnik 5500 Bolsa Avenue, Suite 201
535 N. Brand Boulevard, Suite 705 Huntington Beach, CA 92649
Glendale, CA 91203 Telephone: 310-652-2242
Telephone:
\DOONJO‘sUI-P-UJM
818-230-8380 whames uel .com
Facsnnile: 818-230-0308
daviddﬁveremianlawcom Attorneys for Plaintiff
roman@yeremianlaw.com Vivian Ly

Attorneys for Plaintiff
Vivian Lv

Shaun Setareh Alicia R. Kennon
Setareh Law Grou Jordana N. Better
315 S. Beverly Drive Wood, Smith, Henning & Berman LLP
Suite 315 1401 Willow Pass Road, Suite 700
Beverly Hills, CA 90212 Concord, CA 94520—7982
Telephone: 310-888-7771 Telephone: 925-222—3400
Shaun@setarehlaw.com akennon@wshblaw.com
1'better@wshblaw.com
Attorneys for Plaintiff
Kiki Chess Attorneys for Defendant
MobileOne LLC

Presiding Judge 0f the Superior Court of Clerk, Dept. 2
Califorma County of San Mateo San Mateo Superior Court
400 County Center 400 County Center
Redwood Citv. CA 94063 Redwood Citv. CA 94063

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SMRH2-18 5-8332-4070J
l

Case Info

Judge

Weiner, Marie S. Track Judge’s New Case

Case No.

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Document Filed Date

November 27, 2019

Case Filing Date

May 22, 2019

County

Parties

CHESS, KIKI Plaintiff
LY, VIVIAN Plaintiff
MOBILEONE, LLC, AN ARIZONA LIMITED LIABILITY COMPANY Defendant
SETAREH, CHAIM S. Attorney for the Plaintiff
YEREMIAN, DAVID Attorney for the Plaintiff
William Pao Attorneys for Plaintiffs
Gregg Fisch Attorneys for Defendants
Yongqing Yang Attorneys for Defendants
Michaela Goldstein Attorneys for Defendants
Alexandra McIntosh Attorney
Roman Shkodnik Attorneys for Plaintiffs
Tracy Warren Attorneys for Plaintiffs
Kathryn Fox Attorneys for Plaintiffs
Walter Haines Attorneys for Plaintiffs
Michael Campbell Attorneys for Defendants
Nolan Dilts Attorneys for Plaintiffs
Alicia Kennon Attorneys for Defendants
Y. Yang Attorneys for Defendants
RICK WALTMAN Attorneys for Defendants
David Mcdonough Attorney
Louis Mok Attorney

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Motion-Secondary: IN RE: MOBILEONE WAGE AND HOUR CASES

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