Case Number: BC551506    Hearing Date: October 21, 2014    Dept: 34

Plaintiff’s Motion to Consolidate is GRANTED

PRELIMINARY COMMENTS:

Defendant argues that the motion for consolidation should be denied because, inter alia, there are different defendants in the Wrongful Termination Lawsuit then in the Labor Commissioner Appeal. In particular, defendant states that the Wrongful Termination Lawsuit “is brought not only against Four Star Trim but also against Defendants Vicki Aryeh and Vivian Aryeh and even against plaintiff’s previous employer, Four Star Mills, Inc., which the Complaint admits did not employ plaintiff after April 2009 — more than four years before the complaint was filed.” (Opp., p. 1:13-17.) The court finds this statement somewhat disingenuous. It is the Court’s understanding that both Defendants Four Star Trim Inc. and Four Star Mills Inc. are owned by Defendants Vicki and Vivian Aryeh. Defendant Four Star Mills Inc. is a suspended corporation. In fact, Defendant Four Star Trim, Inc. is the successor corporation to Defendant Four Star Mills, Inc.

BACKGROUND:

On 4/28/14, Plaintiff filed a Notice of Appeal as to the Dept. of Industrial Relations/Division of Labor Standards Enforcement (“DIR/DLSE”) award dated 3/28/14 (BS148438). The complaint was filed on 7/16/13. On 3/28/14, the Labor Commissioner awarded Plaintiff $2,319.35 on his claim that his employer Four Star Trim Inc. failed to pay overtime wages and reimburse him for mileage during the time period between 7/16/10 and 7/15/13. The claim also included LC §1194.2 damages, interest and penalties under LC §203. Plaintiff’s requested damages was over $90,000.

On 7/11/14, Plaintiff filed a civil wage & hour action (BC551506). Plaintiff is suing Defendants Four Start Trim, Inc.; Four Star Mills, Inc.; Vicki Aryeh and Vivian Aryeh. The civil complaint alleges: 1) Intentional Misclassification (LC §226.8); 2) Failure to Pay Earned wages (LC §§204, 206, 218.5, 218.6); 3) Failure to Reimburse Employee Expenses (LC §2802); 4) Unlawful Retaliation; 5) Wrongful Termination in Violation of Public Policy; 6) Itemized Wage Statement Violations (LC §226); 7) Waiting time Penalties (LC §§201-203, 210, 558, 8) Failure to Provide Employee File (LC §§432, 1198.5) and 9) Unlawful Business Practices (BP §§17200-17208). Plaintiff started his employment in May 2000 and was wrongfully terminated on 12/10/13. The wage and hour based claims in this action do not include the time period alleged in the DIR/DLSE Complaint but involves violations occurring on and after 7/16/13.

ANALYSIS:

“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.” CCP §1048(a). An order determining whether to consolidate is discretionary. Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978. “A consolidation of actions does not affect the rights of the parties. The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions.” Wouldridge v. Burns (1968) 265 Cal.App.2d 82, 86.
On 4/28/14, Plaintiff filed a Notice of Appeal as to the Dept. of Industrial Relations/Division of Labor Standards Enforcement (“DIR/DLSE”) award dated 3/28/14 (BS148438). The complaint was filed on 7/16/13. On 3/28/14, the Labor Commissioner awarded Plaintiff $2,319.35 on his claim that his employer Four Star Trim Inc. failed to reimburse him for mileage during the time period between 7/16/10 and 7/15/13. The award also determined that Plaintiff was an outside sales person and thus not entitled to overtime wages. The claim also included LC §1194.2 liquidated damages, interest and penalties under LC §203. Plaintiff’s requested damages was over $90,000.

On 7/11/14, Plaintiff filed a civil wage & hour action (BC551506). Plaintiff is suing Defendants Four Start Trim, Inc.; Four Star Mills, Inc.; Vicki Aryeh and Vivian Aryeh. The civil complaint alleges: 1) Intentional Misclassification (LC §226.8); 2) Failure to Pay Earned wages (LC §§204, 206, 218.5, 218.6); 3) Failure to Reimburse Employee Expenses (LC §2802); 4) Unlawful Retaliation; 5) Wrongful Termination in Violation of Public Policy; 6) Itemized Wage Statement Violations (LC §226); 7) Waiting time Penalties (LC §§201-203, 210, 558, 8) Failure to Provide Employee File (LC §§432, 1198.5) and 9) Unlawful Business Practices (BP §§17200-17208). Both Defendants Four Star Trim Inc. and Four Star Mills Inc. are owned by Defendants Vicki and Vivian Aryeh. Defendant Four Star Mills Inc. is a suspended corporation. Plaintiff was initially employed by Defendant Four Star Mills, Inc. until it changed its name to Defendant Four Star Trim, Inc. Plaintiff started his employment in May 2000 and was wrongfully terminated on 12/10/13. The wage and hour based claims in this action do not include the time period alleged in the DIR/DLSE Complaint but involves violations occurring on and after 7/16/13.

The issues of fact and law are both similar and different between the two cases. Plaintiff’s allegations that he was misclassified as an independent contractor and should have been classified as an employee entitled to overtime pay are similarly found in both cases. The civil action (BC551506) is certainly more encompassing than the DIR/DLSE complaint in that it includes claims for unlawful retaliation and wrongful termination and additional wage and hour claims like failure to provide itemized wage statements; waiting time penalties and failure to provide employee file.

Defendants are correct that the Labor Commissioner Appeal is scheduled as a one-day court trial, while the Wrongful Termination Lawsuit is scheduled as a five-day jury trial. Defendants are also correct when they assert that the decision in the Labor Commissioner Appeal — were it tried before the Wrongful Termination Lawsuit —
might have collateral estoppel effect on a subsequent jury trial.

Nonetheless, the court finds that consolidating these two cases would promote judicial economy, and no parties would be prejudiced by such a consolidation.

The Motion to Consolidate is GRANTED.

All future pleadings are to be filed under the lead case William Moore v. Four Star Trim, Inc. Case BC 551506. All trial and other dates in the case BS 148438 are hereby vacated. The final status conference and jury trial dates in case BC 551506 remain as previously calendared.