SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

YI ZHENG, LEI LIU, DI WANG, and RAN XIONG,

Plaintiffs,

vs.

S.J. DISTRIBUTORS, INC., DOES 1 through 100,

Defendants.

GUADALUPE FLORES ELIZARRARAZ, on behalf of himself and all others similarly situated,

Plaintiff,

vs.

S.J. DISTRIBUTORS, INC., DOES 1 through 50, inclusive,

Defendants.
Case No. 16CV295717

TENTATIVE RULING RE: MOTION TO CONSOLIDATE

Case No. 18CV333810

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on February 1, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This motion concerns two putative class action cases filed against defendant S.J. Distributors, Inc. (“Defendant”).

On August 24, 2018 Plaintiff Guadalupe Flores Elizarraraz (“Elizarraraz”) filed Case No. 18CV333810, which is brought on behalf of non-exempt employees holding job titles such as “warehouse worker,” “laborer,” and “driver” who are or have been employed by Defendant. (Elizarraraz Complaint), ¶ 1.) Elizarraraz alleges Defendant committed various wage and hour violations, including failing to pay overtime wages, failing to provide meal and rest periods, failing to provide accurate wage statements, and failing to reimburse business expenses. (Id. ¶¶ 39-82.) The Elizarraraz Complaint sets forth six causes of action: (1) Failure to Pay Wages Owed; (2) Failure to Provide Meal and Rest Periods or Pay Meal and Rest Period Premiums; (3) Failure to Provide Accurate Itemized Wage Statements; (4) Unlawful Failure to Reimburse Business Expenses; (5) Failure to Timely Produce Employment Records; and (6) Unfair Business Practices Under the Unfair Competition Law.

More than two years earlier – on May 27, 2016 – plaintiffs Yi Zheng, Lei Liu, Di Wang, and Ran Xiong filed Case No. 2016CV295717 which alleges similar wage and hour violations against Defendant. The Zheng Complaint sets forth seven causes of action: (1) Failure to Pay Overtime Wages; (2) Failure to Provide Meal Periods; (3) Failure to Provide Rest Periods; (4) Failure to Furnish Accurate Wage Statements; (5) Failure to Pay Earned Wages Upon Termination or Discharge; (6) Failure to Maintain Required Records; and (7) Unfair Competition.
Elizarraraz now moves to consolidate the two cases.

II. LEGAL STANDARD

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

(Code Civ. Proc., § 1048, subd. (a).)

III. REQUEST FOR JUDICIAL NOTICE

Elizarraraz requests judicial notice of the following:

(1) the Complaint filed in Elizarraraz v. S.J. Distributors, Inc., case number 18CV333810 in the Santa Clara County Superior Court; and

(2) Excerpts from the demurrer filed by Defendant in the Elizarraraz action.

The Court can take judicial notice of these documents as court records. (Evid. Code, § 452, subd. (d).) Accordingly, the request for judicial notice is GRANTED.

IV. DISCUSSION

Elizarraraz argues there are common factual and legal issues between the two cases that make consolidation appropriate. Elizarraraz asserts both cases involve current and former employees of the same defendant and allege the same or similar misconduct over substantially the same class period. Elizarraraz states the only difference in claims between the two cases is that each case includes one cause of action that is not part of the other case – failure to pay earned wages upon termination in Zheng and failure to reimburse business expenses in Elizarraraz.

Defendant argues Elizarraraz’s motion is defective because Elizarraraz’s notice of motion does not state the grounds for the motion. Defendant is correct that the general rule is that a notice of motion must state the nature of the order sought and the grounds for the motion. (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a).) However,
where the notice states . . . that the motion is being made upon the notice of motion and accompanying papers and the record, and these papers and the record support that particular ground, the matter is properly before the court and the defect in the notice of motion should be disregarded.

(Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.)

Elizarraraz’s notice of motion states it is based on the notice of motion and on the memorandum of points and authorities, as well as an accompanying declaration and request for judicial notice. The memorandum of points and authorities includes the grounds for the motion. Therefore, the Court will exercise its discretion to consider the motion, notwithstanding the defect in the notice.
Defendant also argues consolidation is not appropriate because extensive discovery has been completed in Zheng and consolidation with Elizarraraz would result in substantial duplication of effort and a waste of resources. Defendant provides evidence that an extensive amount of discovery has already been propounded and responses to that discovery have been served in Zheng. (Declaration of Joel Glaser, ¶¶ 3-4.) Further, a Belaire-West notice has been mailed in Zheng with the help of CPT Group, Inc. (Id. at ¶¶ 5-6.) The deadline to respond to the Belaire-West notice was May 18, 2018. (Id. at ¶ 7.)

Authorizing consolidation at this point would result in duplication of efforts on discovery and likely a new Belaire-West notice. The Court notes Elizarraraz is a member of the class in Zheng. Moreover, Elizarraraz filed his case more than two years after Zheng, which involves essentially the same issues. Consolidating the cases, which are not at the same stage of the proceedings, would not serve judicial efficiency and could delay Zheng.

Accordingly, the Court finds the cases should not be consolidated. Elizarraraz’s motion to consolidate is DENIED.

The Court will prepare the final order if this tentative ruling is not contested.