SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

Coordination Proceeding
Special Title (Rule 3.550)

ARRIAGA AND ASSOCIATES
WAGE AND HOUR CASES
JUDICIAL COUNCIL COORDINATION PROCEEDING NO. 4980

TENTATIVE RULING RE: MOTION FOR SUMMARY ADJUDICATION

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on August 2, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a group of coordinated cases involving Arriaga & Associates, Inc. (“Arriaga, Inc.”), a company that provides security for other businesses and entities. (See Verified First Amended Complaint (Case No. 2017-1-CV-310003) (“FAC”), ¶¶ 2 and 8.) In one of the cases before the Court, Arriaga, Inc. alleges defendants Jason Lara and Jose Segura were employees of Arriaga, Inc. (FAC, ¶¶ 3 and 7.) On July 1, 2016, Lara and Segura contacted Arriaga, Inc.’s biggest customer, Dave & Busters, to speak about replacing Arriaga, Inc. with Lara, Segura, and several other employees of Arriaga, Inc., for the provision of security to Dave and Busters in California. (FAC, ¶¶ 11-13.) Dave and Busters decided to make the switch. (FAC, ¶¶ 16-19.) Based on these and other allegations, the FAC states numerous claims, including claims for fraud, unfair competition, breach of contract, and conspiracy.

Lara and Segura have filed a cross-complaint arising out of various alleged wage and hour violations against Arriaga, Inc. and Louis Christopher Arriaga (“Arriaga”). The first 18 causes of action in the Cross-Complaint are based mainly on Labor Code sections. The 19th through 26th causes of action are PAGA claims. Arriaga, Inc. and Arriaga (collectively, the “Moving Parties”) now move for summary adjudication of the 19th through 26th causes of action.

II. OBJECTIONS TO EVIDENCE

Code of Civil Procedure section 437c, subdivision (q) states:

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

Accordingly, the Court will not rule on objections that are not deemed material to the disposition of the motions. To the extent any objections are material, they will be addressed in the Court’s discussion where appropriate.

III. DISCUSSION

The Moving Parties argue Segura failed to provide appropriate notice of the PAGA claims to the Moving Parties and therefore failed to exhaust his administrative remedies prior to filing the PAGA action. Specifically, the Moving Parties contend the PAGA notice was sent to the Labor and Workforce Development Agency (“LWDA”) and attorney Barzin Barry Sabahat, and not to the Moving Parties. The Moving parties argue further the PAGA letter is inadequate because it is devoid of facts.

A. Procedural Issues

As an initial matter, Segura argues the motion for summary adjudication is defective because the Moving Parties have not pleaded an affirmative defense of exhaustion of administrative remedies and the separate statement lumps all eight causes of action together. With regard to the first argument, Segura acknowledges the 23rd affirmative defense in the Moving Parties’ Answer is one for failure to exhaust administrative remedies. Segura contends this affirmative defense is inadequate because it does not plead facts.

Segura never challenged the 23rd affirmative defense through any substantive motion, such as a demurrer or motion to strike. If Segura had done so successfully, it is likely the Moving Parties would have been given the chance to amend. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385.) Segura’s failure to challenge the sufficiency of the pleading of affirmative defenses results in a partial waiver of the right to rely upon any purported defects at this time. (See ibid.) The Court will not make a finding, based on an opposition to a motion for summary adjudication on certain causes of action, that the affirmative defense is defective.

Segura’s second argument concerns the adequacy of the Moving Parties’ separate statement. Segura contends the separate statement is defective because it lumps the 19th through 26th causes of action together. California Rules of Court, rule 3.1350 states a separate statement of undisputed material facts in support of a motion must separately identify each cause of action that is the subject of the motion. The Moving Parties’ separate statement does not separate the causes of action as required. Nevertheless, this defect is minor, does not impact the Court’s analysis, and causes no prejudice to Segura. The Court will consider the motion on its merits.

B. Service of the PAGA Notice

Prior to initiating a PAGA action, an “aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.” (Labor Code, § 2699.3, subd. (c)(1)(A).)
The Moving Parties provide evidence a PAGA letter was sent to the LWDA and to Sabahat. (Separate Statement of Undisputed Material Facts (“UMF”), No. 3.) They also present evidence the letter was not sent to Arriaga, Inc. or Arriaga directly. (Id., No. 5.) The Moving Parties argue Segura’s failure to send the letter to Arriaga, Inc. and Arriaga shows non-compliance with PAGA’s service requirements, which require notice to the employer. (Lab. Code, § 2699.3, subd. (a)(1)(A).) The Moving Parties contend this means Segura failed to exhaust administrative remedies and the PAGA action is invalid.

In opposition, Segura argues the letter was not sent directly to Arriaga, Inc. and Arriaga because they were represented by Sabahat and Segura could not contact them without the consent of their attorney. Segura also presents evidence his attorney emailed Sabahat to ask about notice of the PAGA claim and Sabahat responded via email, stating: “I am copying this email to my client as well to make sure he will be available. We did receive the claim and are preparing the employment files as well as a response to the charges.” (Cross-Complainant Segura’s Separate Statement of Disputed and Undisputed Material Facts and Separate Statement of Additional Material Facts, No. 5; Declaration of Carol A. Humiston, Esq. in Opposition to Cross-Defendants’ Motion for Summary Adjudication of PAGA Causes of Action, ¶¶ 8-10; Cross-Complainant’s Compendium of Exhibits in Support of Opposition to Cross-Defendants’ Motion for Summary Adjudication, Ex. F.)

Arriaga, Inc. and Arriaga contend Sabahat did not agree to accept service of the PAGA letter and told Segura’s counsel he was not accepting service of any documents outside to scope of a separate business litigation in which he represented Arriaga, Inc. and Arriaga. (Declaration of Barzin Barry Sabahat in Support of Motion for Summary Adjudication, ¶ 5.) Even if it is true Sabahat made this statement to Segura’s counsel at some point, his email response stating the claim was received and a response was being prepared raises a triable issue of material fact as to the issue of whether service of the letter was accepted by him on behalf of Arriaga, Inc. and Arriaga.

Moreover, although Arriaga, Inc. and Arriaga adopt a strict reading of the PAGA statute requiring service of notice on the “employer,” it has been held that providing notice of PAGA claims to a party’s attorney can be sufficient. (See Willner v. Manpower Inc. (N.D. Cal. 2014) 35 F.Supp.3d 1116, 1135 [“Willner has shown that she gave notice in writing of her PAGA claims and their bases to Manpower’s attorney, Matthew Kane. [Citation.] This is sufficient to establish compliance with PAGA’s notice requirements given that Manpower points to no evidence showing that Kane never forwarded this notice to Manpower, or that Manpower did not receive timely notice of Willner’s PAGA claims. At this stage of the litigation, untimely notice cannot be a dispositive issue.”].) Here, there is evidence showing Sabahat made an affirmative representation that the notice was being shared with his client. This goes beyond even the facts of Willner, where there was only a lack of evidence the notice was forwarded.

In sum, for the reasons discussed, summary adjudication cannot be granted on the basis that notice of the PAGA claims was not provided to the “employer.”

C. Adequacy of the PAGA Notice

The Moving Parties also argue the PAGA letter itself is deficient because it is devoid of facts. Generally, a PAGA notice must include “the facts and theories to support the alleged violation.” (Lab. Code, § 2699.3, subd. (a)(1)(A).) While there have been cases holding that mere legal conclusions are insufficient (see Alcantar v. Hobart Service (9th Cir. 2015) 800 F.3d 1047, 1057), the California Supreme Court has held “[n]othing in Labor Code section 2699.3, subdivision (a)(1)(A), indicates the ‘facts and theories’ provided in support of ‘alleged’ violations must satisfy a particular threshold of weightiness, beyond the requirements of nonfrivolousness generally applicable to any civil filing.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 545.)

While the PAGA letter is somewhat sparse on facts, it is not devoid of them. (See Declaration of Dania M. Baker in Support of Motion for Summary Adjudication, Ex. B.) It provides the names and positions of Lara and Segura, as well as pointing out various company-wide practices they contend violate the law. Ultimately, the Court finds the letter sufficiently provided notice to the LWDA of the claims, giving the LWDA the opportunity to decide whether to investigate. This is all that is required. (See Williams v. Superior Court, supra, 3 Cal.5th at pp. 545-546.)
Accordingly, the motion for summary adjudication is DENIED.

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