34-2016-00190824

Jose J. Mejia vs. Roussos Construction, Inc.

Nature of Proceeding: Motion for Judgment on the Pleadings (Chavez)

Filed By: Aran, Jeffrey L.

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific issue(s) on which oral argument is sought. **

The motion of Defendants Michael Chavez (Chavez) and J. Trinidad Nino dba Nino’s Carpet (Nino) for judgment on the pleadings is GRANTED in part with leave to amend and DENIED in part.

Overview

This is a wage-and-hour employment case. There are three named plaintiffs: Jose J. Mejia (Mejia), Miguel Osuna (Osuna) and Oscar J. Almazan-Martinez (Almazan) (collectively “Plaintiffs”). In the operative third amended complaint (TAC), Plaintiffs allege that they worked as floor installers for more than one defendant-employer.

All three Plaintiffs are suing Co-Defendant Roussos Construction, Inc. (Roussos) as a co-employer. Roussos is not a party to this motion.

Plaintiff Mejia is not a party to the motion either. He specifically alleges that Co-Defendant Mathew Hawkins (Hawkins) was his co-employer. Like Roussos and Mejia, Hawkins is not a party to the motion.

Plaintiff Osuna specifically alleges that Defendant Chavez was his co-employer.

Plaintiff Almazan specifically alleges that moving party Nino was his co-employer.

Aside from the fact that each plaintiff expressly alleges that one individual was his co-employer with Roussos, all the Plaintiffs allege in general terms that each defendant was the other’s agent and was a joint employer of each plaintiff. Hence, when read together, the allegations characterize each individual defendant as a co-employer of each plaintiff.

By the instant motion, Chavez and Nino move for judgment on the pleadings on grounds Plaintiffs have admitted not every individual defendant was the co-employer of every plaintiff. Chavez and Nino plant these admissions in a verified answer to a cross -complaint, previously filed declarations and deposition transcripts of which judicial notice is requested. Plaintiffs oppose.

Trial is set to commence on 1/29/18.

Judicial Notice

Chavez’ and Nino’s request for judicial notice of previously filed court documents is GRANTED. In taking judicial notice of these documents, the court accepts the fact of their existence and the fact of their contents, not the truth of their contents.

As Chavez and Nino observe, the court may take judicial notice of deposition transcripts and other discovery to the extent they contain party admissions that cannot reasonably be controverted. (See Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989-990; see also Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 365 [“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. [Citation.]’ … ‘ ‘[J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed’”].) For reason discussed below, the submitted declarations and deposition transcripts do not contain Plaintiffs’ uncontroverted admissions. Hence, the court does not accept the truth of the contents of any deposition transcripts or declarations.

Discussion

Preliminarily, the court does not address arguments or evidence aimed at the viability of any Plaintiffs’ legal claims against Defendant Nick Speris. Plaintiffs settled with Speris on or about 1/05/18.

Turning to the merits, Nino and Chavez argue a variety of documents contain admissions by Plaintiffs. The court considers these documents seriatim.

Osuna’s and Almazan’s Verified Answer to Chavez’ and Nino’s Cross-Complaint

In their verified answer, Osuna and Almazan deny all the allegations in paragraph 8 of the cross-complaint. Paragraph 8 contains several subparagraphs. In subparagraphs 8.e and 8.f, Chavez and Nino allege:

In the years 2013-2014, Miguel Osuna (a.k.a. Miguel Guerrero and Miguel Barron) acted like a contractor and performed carpet and flooring installation work for Chavez at various locations. In 2013-14, Chavez paid Osuna a total of $52,293.65 (2013-$17,779.45; 2014-$34,514.20).

In the years, 2012-2014, Almazon-Martinez acted like a contractor and performed carpet and flooring installation work for Nino at various locations. In 2011-14, Nino paid Almazon-Martinez $97,322.00 (2012-$14,268.00; 2013 -$40,341.00; 2014-$42,713.00).

(Aran Decl., Exh. 4.) Chavez and Nino argue that the denial about having performed work for them personally constitutes Osuna’s admission that Chavez did not employ and as well as Almazan’s admission that Nino did not employ him. Osuna and Almazan counter that they only intended to deny having performed work for Chavez or Nino while acting “like a contractor.” In other words, Osuna and Almazan ask the court to construe their denial in context, while Chavez and Nino argue the denial must be construed literally.

Chavez and Nino have the better argument. If Osuna and Almazan did not intend to deny certain phrases, sentences or other parts within subparagraphs 8.e and 8.f, they should have made that clear. (See CCP § 431.20(f).) However, their explanation of what they intended by their denial is colorable, and they are entitled to clarify by amending their answer to the cross-complaint.

Plaintiffs’ Previously Filed Declarations

In declarations supporting a motion for class certification in this case, Plaintiffs asserted Roussos was their employer. They also asserted that individual defendants acted as their “supervisors.” Chavez and Nino argue these assertions are admissions Roussos was Plaintiffs’ only employer.

The court disagrees. Chavez and Nino have not shown that the declarations contain clear admissions Roussos was the only employer. Furthermore, each declaration contains assertions that are consistent with co-employment by at least one individual defendant. (See Almazan Decl., ¶ 5 [“[T]here was never any written contract between

me, Mr. Nino and Roussos that explained the nature of my employment with them”], emphasis added; Osuna Decl., ¶ 6 [same], and id. ¶ 10 [“Mr. Chavez gave me my first paycheck [and] I noted that he made a lot of deductions from my pay”] and id. ¶ 36 [“I remember asking Mr. Chavez for a raise…Mr. Chavez would get angry with me and say ‘that is all can pay’”]; Mejia Decl., ¶ 16 [“Mr. Hawkins agreed to classify me as his employee”].) As a result, even if Plaintiffs’ declarations otherwise undermine or circumscribe a theory of co-employment, the declarations are not so inconsistent with that theory as to warrant a judgment at the pleading stage.

Deposition Testimony

At deposition, Osuna testified that he has not “ever performed any work for Hawkins.” He also testified that he has not “ever performed any work for” Nino. Mejia provided similar testimony, i.e., that he never worked with or spoke with Chavez and Nino. Chavez and Nino argue that this testimony amounts to admissions they and Hawkins were not co-employers.

Plaintiffs counter that Chavez’ and Nino’s deposition transcripts contain contrary admissions, i.e., that each was a co-employer. (See Plaintiffs’ Lodgment filed 1/11/18.) Chavez and Nino object that these deposition transcripts are evidence that the court may not consider. The court only considers the transcripts to determine whether Plaintiffs’ deposition transcripts contain admissions that cannot reasonably be controverted and, therefore, are subject to judicial notice.

Although Chavez’ and Nino’s deposition transcripts do not contain assertions that they co-employed any specific plaintiff, the transcripts contains testimony consistent with co -employment of Roussos’ floor installers generally (e.g., that Chavez and Nino hired and fired installers and set compensation). The question becomes whether Plaintiffs’ testimony that they did not perform work for Chavez and Nino must be considered an admission of non-employment even though Chavez and Nino might have co-employed at least some of Roussos’ floor installers.

The court will not grant judgment on the pleadings on this record. The current comparison of deposition testimony and search for proper inferences is the type of analysis the court in Unruh-Huxton, supra, warned against at the pleadings stage.

Furthermore, Plaintiffs’ TAC contains general allegations that each defendant was the others’ agent and partner working for a common purpose and acting “in concert with” each another. (TAC, ¶ 16.) Liberally construed, these allegations are consistent with employment relationships in which particular floor installers did not personally meet or work at the same location with particular individual defendants. Chavez and Nino do not cite authority barring such employment relationships. Hence, Plaintiffs’ testimony that they have not “performed work” for particular defendants is not an uncontroverted admission compelling judgment on the pleadings.

Disposition

Because the verified answer to the cross-complaint contains admissions that Chavez was not Osuna’s employer and Nino was not Almazan’s employer, judgment on the pleadings is granted to that extent only. Osuna and Almazan may amend their answer to paragraph 8 in the cross-complaint.

The motion is otherwise denied.

No later than 1/25/18, Osuna and Almazan are directed to file, and serve by means calculated to arrive the following business day, any amended verified answer to the cross-complaint.

Although not required by any statute or rule of court, Osuna and Almazan are requested to attach a copy of the instant minute order to the amended answer to facilitate the filing of the pleading.