2017-00216612-CU-OE

Carlos McCollumn vs. Glide Rite

Nature of Proceeding: Hearing on Demurrer to 1st Amended Complaint

Filed By: Cohon, Jeffrey M.

Defendant Glide Rite’s demurrer to the first amended complaint (FAC) is SUSTAINED as follows:

Glide Rite’s request for judicial notice is GRANTED.

Plaintiff Carlos McCollumn’s (McCollumn) request for judicial notice is GRANTED as well.

McCullomn’s declaration as well as the declaration submitted by Daniel J. Park are STRICKEN. The court may not consider evidence at this juncture.

This is a wage and hour case and a putative class action. The named plaintiffs are McCollumn and Maximo Garcia (Garcia) (collectively “Plaintiffs”). McCollumn filed the original complaint as the sole named plaintiff on 8/01/17. Plaintiffs filed the FAC on 9/15/17. The FAC contains causes of action for violations of the Labor Code, and there is also an unfair competition cause of action under B&P Code § 17200. Glide Rite is the only named defendant.

On 6/16/17–shortly before this case was filed–Garcia filed a similar putative class action against Glide Rite in Los Angeles Superior Court, case no. BC 665485 (the “first -filed action”). The main differences between the two cases appear to be (1) McCollumn is not a named plaintiff in the first-filed action, (2) the complaint in the first-filed action does not include a cause of action for reimbursement of business expenses under Labor Code §§ 2800 and 2802, (3) the complaint in the first-filed action does include a cause of action for civil penalties under the Private Attorneys General Act of 2004, and (4) counsel for plaintiff(s) are not the same. Despite these differences, the two actions are substantially identical.

Glide Rite now demurs on grounds there is another action pending between the same parties on the same cause of action. (See CCP § 430.10(c).) Glide Rite also invokes the doctrine of exclusive concurrent jurisdiction. Where “the issue in both actions is the same and arises out of the same transaction or events,” (County of Siskiyou v. Superior Court (App. 3 Dist. 2013) 217 Cal.App.4th 83, 89), the first court to assume jurisdiction does so to the other’s exclusion until “all necessarily related matters” are resolved. (Id., p. 91.)

It appears Garcia has move for a dismissal without prejudice of the first-filed action in order to proceed as a plaintiff in this case instead. (See Def. RJN, Exh. 7; Pl. RJN, Exh. 3.) Because the first-filed action is a putative class action, dismissal requires court approval. (See CRC 3.770.) Glide Rite objected to the dismissal on grounds its demurrer in this case should be heard first. There is no order of dismissal in the first-filed action. It appears the judge in the first-filed action continued a status conference in that case so this court could consider the instant demurrer. (See Def. RJN, Exh. 8.)

The doctrine of exclusive concurrent jurisdiction compels entry of stay until the first-filed action is dismissed or other change circumstances require the stay to be lifted. The court does not decide whether a stay is likewise required on grounds of another action pending.

Disposition

The demurrer is SUSTAINED based on the doctrine of exclusive concurrent jurisdiction.

This case is STAYED. Any party may move for an order lifting the stay if and when the stay is no longer warranted.