Case Number: BC693868 Hearing Date: May 29, 2018 Dept: 51

Background

Plaintiff Adela Cortes brings this representative action under PAGA against Evolution Hospitality, LLC for alleged violations of the Labor Code.

On February 13, 2018, plaintiff filed a complaint for violation of PAGA. The complaint alleges that defendant failed to pay minimum and overtime wages, provide meal and rest periods, pay wages upon termination or resignation, and provide compliant wage statements.

On April 13, 2018, defendant filed this opposed demurrer and application to stay, arguing that the doctrine of “exclusive concurrent jurisdiction” applies because of another action filed against defendant in December 2017. Defendant’s counsel submitted a compliant meet and confer declaration. Sorsher Decl. ¶¶ 2-3. The Court considered the moving, opposition, and reply papers and rules as follows.

Request for Judicial Notice

Defendant’s request for judicial notice of the complaint filed by Ena Maria Rizo against defendant in a different department of the Court on December 6, 2017 under case number BC686011 (Rizo Complaint) is GRANTED. Evid. Code § 452(d). Defendant’s request for judicial notice of other documents, including Ena Mario Rizo’s letter to the Labor & Workforce Development Agency is GRANTED because the request is unopposed. See People v. Konow (2004) 32 Cal.4th 995, 1013 fn.3 (“No opposition has been filed to any of these requests. We therefore grant the requests.”) The Court does not take judicial notice of any facts contained within these documents. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.

Exclusive Concurrent Jurisdiction Standard

“The established rule of ‘exclusive concurrent jurisdiction’ provides that where two (or more) courts possess concurrent subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to the exclusion of all others, thus rendering ‘concurrent’ jurisdiction ‘exclusive’ with the first court. [Citations.] The rationale supporting the rule is a highly practical one. As Witkin has it, ‘Justification for the rule [of exclusive concurrent jurisdiction] rests on practical considerations. If the identical cause of action is asserted by the same plaintiff in two suits, there is no doubt that the first court has priority, but this can rarely happen. What does happen is that parties to the same controversy or transaction . . . file separate suits on their individual causes of action, usually against each other. Although their claimed rights and therefore their alleged causes of action are distinct, the issues are substantially the same, and individual suits might result in conflicting judgments. The rule of priority is designed to avoid the unfortunate results of these conflicts by requiring, in effect, a consolidation of the separate actions in the court in which jurisdiction of the parties first attached. [Citations.]’ [Citation.]

Analysis

The Court is under the impression that it is not unusual for plaintiffs to include a PAGA claim along with a class action. See, e.g., Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal. 4th 348, 359-360 (“an employee seeks to bring a class action lawsuit on behalf of himself and similarly situated employees . . . [t]he employee also sought to bring a representative action under the Labor Code Private Attorneys General Act of 2004”).

It is hard to see why this PAGA claim, filed about two months after the class action by the same attorneys, was not brought with the class action or through a motion for leave to amend in that case. In any event, having filed it separately, it seems clear that there was a duty to file a Notice of Related Case, see California Rule of Court 3.300(b). This Court will continue the hearing on this motion in order to allow a Notice of Related Case to be filed in each lawsuit and ruled upon.

If the cases are deemed related, the judge assigned to the low-number case should be ruling on this motion. If the cases are not deemed related, this Court will rule on this motion.

Conclusion

The hearing the demurrer is CONTINUED TO June 29, 2018, at 9:00 a.m.

Defendant to give notice.