Case Number: BC94782 Hearing Date: January 21, 2020 Dept: 37

HEARING DATE: January 21, 2020

CASE NUMBER: BC94782

CASE NAME: John Jackson v. Swissport SA, LLC, et al.

MOVING PARTY: Defendants, Swissport SA, LLC and Swissport USA, Inc.

OPPOSING PARTY: Plaintiffs, John Jackson and Jeffrey Angel

TRIAL DATE: September 29, 2020

PROOF OF SERVICE: OK

MOTION: Defendants’ Motion to Stay Action

OPPOSITION: January 7, 2020

REPLY: January 13, 2020

TENTATIVE: Defendants’ Motion to Stay the Action is DENIED. Plaintiffs are to provide notice.

Background

This is an action for violation of the Private Attorney General Act (“PAGA”) arising out of Plaintiffs, John Jackson (“Jackson”)’s employment with Defendant, Swissport SA, LLC (“Swissport LLC.”) Plaintiff’s Complaint alleges as to himself and all other similarly situated employees that Swissport LLC engaged in labor practices in violation of PAGA by failing to do all of the following: (1) provide required meal periods, (2) provide required rest periods, (3) pay overtime wages, (4) pay minimum wages, (5) timely pay wages during employment, (6) pay all wages due upon discharged employees, (7) maintain appropriate records, (8) furnish accurate itemized wages statements, and (9) reimburse employees for necessary expenditures incurred in discharge of duties.

Further, Plaintiff alleges that he provided notice to the California Labor and Workforce Development Agency (“LWDA”) on November 15, 2017 and as, as the Complaint was filed on February 20, 2018, Plaintiff alleges that he properly complied with statutory requirements for bringing a PAGA action.

On November 5, 2018, Plaintiff, with leave of court, filed a First Amended Complaint (“FAC”). The FAC names Jeffrey Angel (“Angel”) as a new Plaintiff but otherwise does not add factual allegations or causes of action.

On August 29, 2019, Plaintiff named Swissport Fueling, Inc. and Swissport Cargo Services, Inc. as doe defendants.

Swissport LLC and Defendant Swissport USA, Inc. (“Swissport Inc.”) (together, the “Swissport Defendants”) now move for a stay of the instant action pending judgment in an earlier filed federal action brought by Plaintiff, Ivonne Avila. (see Motion, 2-3.) This federal action, entitled Ivonne Moncerat Avila v. Swissport SA, LLC, et al. (United States District Court Case no. 2:17-cv-5974 (“Avila Action”)), is allegedly filed by the same Plaintiffs attorney against Swissport. (Declaration of David Yudelson in support of Motion (“Yudelson Decl.”) ¶3, Exhibit 2.) The Swissport Defendants contend that the Avila Action alleges the same alleged failures on their part to provide employees meal and rest periods, pay overtime, pay the minimum wage, timely pay wages, pay all wages due to terminated employees, maintain accurate records, furnish accurate wage statements and reimburse for business expenditures. (Motion, 2.)

The Swissport Defendants contend that a stay is required of this action because both plaintiffs’ complaints allege only a cause of action for PAGA and, as such, this action should necessarily be stayed under a theory of exclusive concurrent jurisdiction in favor of the Avila Action given that the Avila Action was first filed.

Plaintiffs oppose the motion and contend generally that no stay is required because PAGA does not provide that subsequent filed actions must be stayed.

Discussion

The Swissport Defendants request a stay pending the resolution of a federal action which addresses similar issues. “Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) “[W]hen a federal action has been filed covering the same subject matter as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action.” (Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804. As to another action pending in a federal or sister-state court, “the principle of comity may call for a discretionary refusal of the court to entertain the second suit pending determination of the first-filed action.” (Gregg v. Sup. Ct. (1987) 194 Cal.App.3d 134, 136. [finding abuse of discretion as to order staying action in the only forum that could provide the relief].)

The Swissport Defendants contend that while a stay is discretionary, it is warranted in the instant action because it “avoids unseemly conflicts” and discourages harassing, multiple litigations. (Motion, 6-9.) The Swissport Defendants appear to contend that a stay is warranted in PAGA actions such as the Avila Action and the instant action because each PAGA action necessarily encompasses claims brought by all other similarly situated employees. As such, the Swissport Defendants contend that judgment in an earlier filed PAGA action against the same employer may completely resolve the issues in a later filed PAGA action against that employer. (see Motion, 6-7.) The Swissport Defendants mainly rely on ZB, N.A. v. Superior court of San Diego County (2019) 8 Cal.5th 175 (Lawson) and Alakozai v. Chase Inv. Servicse Corp., an unpublished opinion from the United States District Court for the Central District of California in support of their contention.

In Lawson, an employee brought an action under PAGA, seeking civil penalties under Labor code section 558. (Lawson, supra, 8 Cal.5th at 181.) The action named both Plaintiff’s employer and its parent company. (Id.) In concluding that a Plaintiff may not seek civil penalties for an “amount sufficient to recover underpaid wages,” the Lawson court found that not all statutory remedies are “civil penalties” recoverable in an employee’s PAGA action and that underpaid wages should be considered compensatory damages rather than a penalty. (Id. at 185.) Further, the Lawson court concluded that this holding was in line with the purpose and legislative intent of PAGA, in that it was not inconsistent with the broader remedial purpose or “the protection of employees.” (Id. at 251-252.)

Further, the Swissport Defendants rely on Alakozai v. Chase Inv. Servs. Corp, an unpublished federal opinion, for the proposition that a later filed PAGA action can be stayed. The Swissport Defendants’ reliance is misplaced. First, the opinion is unpublished, and a federal opinion. Second, even if the opinion could be considered, its holding is not applicable to a motion for stay. Instead, Alakozai discusses issues with regard to a motion for class certification.

The Swissport Defendants also contend, in a footnote, that they previously met and conferred with Plaintiffs counsel regarding the matter and offered not to seek a stay if the instant action, the Avila Action, and a subsequent filed action by Plaintiffs’ attorneys were “narrowed to the positions/locations of the plaintiffs,” rather than brought as PAGA actions. (Motion, 2, fn. 3; Yudelson Decl. ¶ 7, Exhibit 6.)

Plaintiffs contend that a stay is not warranted because the Swissport Defendants have provided the court no controlling case law to demonstrate that it is. (Opposition, 5-9.) Instead, they cite to several authorities stating that multiple PAGA actions against the same employer are not barred. Further, Plaintiffs contend that a stay is contrary to the purposes of PAGA in that it would impeded the prosecution of the PAGA claim. (Opposition, 10-13.) Specifically, Plaintiffs contend that because the purpose of PAGA is to allow private individuals to prosecute labor code violations on their own behalf and on behalf of the state, that ordering a stay would be contrary to this purpose because it would certain individuals from being these actions in favor of other individuals who brought the actions first.

In a PAGA action, “the government entity on whose behalf the plaintiff files suit is always the real party in interest.” (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382.) Further, the a PAGA claim’s sole purpose is “to vindicate the Labor and Workforce Development Agency’s interest in enforcing the Labor Code.” (Id. at 388-389.)

On reply, the Swissport Defendants appear to contend that Plaintiffs’ prior litigation conduct, especially in conjunction with their mediation of the Avila matter, constitutes an admission that the instant action should be stayed in favor of Avila. (see Reply, 5-6.) Further, the Swissport Defendants appear to contend that Plaintiffs are engaging in “lack of disregard for conserving judicial resources,” and that conversely, conserving judicial resources is grounds to stay the instant action. (Reply, 7-8.) The Swissport Defendants cite additional cases in support of their contentions but also mainly rely on cases that are not controlling.

While the court agrees that it has the discretion to order a stay of this action, because it involves identical claims to the prior-filed action, the resolution of which on the merits will eliminate the need to try the PAGA claims in this action. However, the federal action is stayed pending a resolution of that plaintiff’s individual claims, which may result in that plaintiff no longer being an aggrieved employee entitled to prosecute those PAGA claims. There is no evidence of when that action may be resolved. Therefore the court declines to exercise its discretion to order a stay.

Conclusion

Defendants’ motion for stay is denied. Plaintiffs are to provide notice.

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HEARING DATE: January 21, 2020

CASE NUMBER: BC94782

CASE NAME: John Jackson v. Swissport SA, LLC, et al.

TRIAL DATE: September 29, 2020

PROOF OF SERVICE: OK

MOTION: Plaintiffs’ Motion to Compel Further Responses to Special Interrogatories, Set One

MOVING PARTY: Plaintiffs, John Jackson and Jeffrey Angel

OPPOSING PARTY: Defendant, Swissport USA, Inc.

OPPOSITION: January 7, 2020

REPLY: January 13, 2020

TENTATIVE: Plaintiffs’ Motion to Compel Further Responses is DENIED.

MOTION: Plaintiffs’ Motion to Compel Further Responses to Special Interrogatories, Set One

MOVING PARTY: Plaintiffs, John Jackson and Jeffrey Angel

OPPOSING PARTY: Defendant, Swissport SA, LLC

OPPOSITION: January 7, 2020

REPLY: January 13, 2020

TENTATIVE: Plaintiffs’ Motion to Compel Further Responses is DENIED.

Background

This is an action for violation of the Private Attorney General Act (“PAGA”) arising out of Plaintiffs, John Jackson (“Jackson”)’s employment with Defendant, Swissport SA, LLC (“Swissport LLC.”) Plaintiff’s Complaint alleges as to himself and all other similarly situated employees that Swissport LLC engaged in labor practices in violation of PAGA by failing to do all of the following: (1) provide required meal periods, (2) provide required rest periods, (3) pay overtime wages, (4) pay minimum wages, (5) timely pay wages during employment, (6) pay all wages due upon discharged employees, (7) maintain appropriate records, (8) furnish accurate itemized wages statements, and (9) reimburse employees for necessary expenditures incurred in discharge of duties.

Further, Plaintiff alleges that he provided notice to the California Labor and Workforce Development Agency (“LWDA”) on November 15, 2017 and as, as the Complaint was filed on February 20, 2018, Plaintiff alleges that he properly complied with statutory requirements for bringing a PAGA action.

On November 5, 2018, Plaintiff, with leave of court, filed a First Amended Complaint (“FAC”). The FAC names Jeffrey Angel (“Angel”) as a new Plaintiff but otherwise does not add factual allegations or causes of action.

On August 29, 2019, Plaintiff named Swissport Fueling, Inc. and Swissport Cargo Services, Inc. as doe defendants.

On November 26, 2019, Swissport LLC and Defendant Swissport USA, Inc. (“Swissport Inc.”) (together, the “Swissport Defendants”) filed a motion requesting a stay of this action pending the judgment from an earlier filed PAGA action against them.

Plaintiffs now move for an order compelling the Swissport Defendants to provide further responses to special interrogatories, sets one. The Swissport Defendants oppose the motion.

Procedural History

On April 4, 2019, Plaintiffs propounded Special Interrogatories, Sets One to each of the Swissport Defendants. (see Declaration of Julia Wells in support of each Motion (“Wells Decl.”), ¶ 5.) Defendants served objection only responses to these interrogatories on May 13, 2019. (Wells Decl. ¶ 6.)

The Swissport Defendants’ motion to compel arbitration was heard on May 14, 2019, at which time this court denied the motion without prejudice but stayed discovery for ninety (90) days pending the California Supreme Court’s decision in ZB, N.A. v. Superior Court of San Diego County (2019) 8 Cal.5th 175 (Lawson). (Wells Decl. ¶ 7; May 14, 2019 minute order on Motion to Compel Arbitration.)

On October 15, 2019, the Swissport Defendants served amended responses to Plaintiffs’ special interrogatories. (Wells Decl. ¶ 10.) These responses also allegedly continued to contain only objections without substantive responses. (Id.)

The Swissport Defendants have not provided further supplemental responses to date.

The Parties’ Meet and Confer Efforts

On September 25, 2019, after the 90-day period expired, Plaintiffs’ counsel sent a meet and confer letter regarding responses to Plaintiffs’ special interrogatories. (Wells Decl. ¶ 8, Exhibit A.) The meet and confer letter discussed the Swissport Defendants’ objections by category and contended that each category of objections was meritless. (Id.) On October 2, 2019, the parties met and conferred telephonically, at which time the Swissport Defendants’ counsel allegedly agreed to provide further responses. (Wells Decl. ¶ 9.)

On October 15, 2019, the Swissport Defendants served amended responses.

On November 20, 2019, Plaintiffs’ counsel sent a second meet and confer letter, asking for supplemental responses by November 27, 2019. (Wells Decl. ¶ 11, Exhibit B.) The letter again addressed the Swissport Defendants’ responses, which consisted of both old and new objections, and concluded that all objections were meritless and substance responses were required. (Id.) The letter advised that Plaintiffs intended to move to compel if further responses were not provided by the date requested. (Id.) Plaintiffs filed the instant motions on December 4, 2019. According to Defendants the motion was not served until December 5, 2019, 51 days after the service of supplemental responses.

Discussion

Timeliness of Motions

Pursuant to Code of Civil Procedure section 2030.300, subdivision (c), a motion to compel further responses to interrogatories must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., §§ 1013, subd. (a); 2030.300, subd. (c).)

Here, as discussed above, the instant motions were filed on December 4, 2019. Plaintiffs contend on reply that this constitutes timely filing because the Swissport Defendants’ responses were never served with verifications and, as such, the 45-day period was never triggered. (see Wells Decl. in support of Reply, ¶ 4.) The Swissport Defendants contend that the motions are untimely because it was served 51 days after the amended responses were served, or on December 5, 2019. (Opposition, 5.)

Responses to discovery that only state objections, need to be signed by counsel, but there is nothing for the client to verify, so no verification is necessary. The motions are untimely

Discussion

Under the Discovery Act, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)

On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (See Code Civ. Proc., §§ 2030.300, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

The Swissport Defendants contend that the motions must be denied for failure to fully comply with California Rules of Court, Rule 3.1345 because the Separate Statement omits the text and response of interrogatory number 33 as to both motions and also omits the introductory definitions. (Opposition, 11.)

Upon review of the Separate Statement it clearly does not comply with California Rules of Court, Rule 3.1345. Here, Plaintiffs did not include the definitions of various terms in these interrogatories, such as COVERED EMPLOYEES and COVERED PERIOD. Neither did Plaintiffs submit copies of the interrogatories they served, including the definitions as exhibits. The court should be able to look only to the separate statement to decide the motion. Nowhere does it show when the motion was served. Because of its incompleteness, the court is unable to fully evaluate Plaintiffs’ motion as to each interrogatory without a complete separate statement in support of each motion.

Failure to provide a complete separate statement that conforms to the California Rules of Court is grounds to deny a motion to compel. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893[finding as deficient a separate statement that grouped several responses to discovery into one, truncated lengthier responses to some discovery, and contained an unclear explanation for compelling “further responses, answers, or production.”].)

As such, Plaintiffs’ motion is DENIED.

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HEARING DATE: January 21, 2020

CASE NUMBER: BC94782

CASE NAME: John Jackson v. Swissport SA, LLC, et al.

TRIAL DATE: September 29, 2020

PROOF OF SERVICE: OK

MOTION: Plaintiffs’ Motion to Compel Further Responses to Request for Production, Set One

MOVING PARTY: Plaintiffs, John Jackson and Jeffrey Angel

OPPOSING PARTY: Defendant, Swissport USA, Inc.

OPPOSITION: January 7, 2020

REPLY: January 13, 2020

TENTATIVE: Plaintiffs’ Motion to Compel Further Responses is DENIED.

MOTION: Plaintiffs’ Motion to Compel Further Responses to Request for Production, Set One

MOVING PARTY: Plaintiffs, John Jackson and Jeffrey Angel

OPPOSING PARTY: Defendant, Swissport SA, LLC

OPPOSITION: January 7, 2020

REPLY: January 13, 2020

TENTATIVE: Plaintiffs’ Motion to Compel Further Responses is DENIED.

Background

This is an action for violation of the Private Attorney General Act (“PAGA”) arising out of Plaintiffs, John Jackson (“Jackson”)’s employment with Defendant, Swissport SA, LLC (“Swissport LLC.”) Plaintiff’s Complaint alleges as to himself and all other similarly situated employees that Swissport LLC engaged in labor practices in violation of PAGA by failing to do all of the following: (1) provide required meal periods, (2) provide required rest periods, (3) pay overtime wages, (4) pay minimum wages, (5) timely pay wages during employment, (6) pay all wages due upon discharged employees, (7) maintain appropriate records, (8) furnish accurate itemized wages statements, and (9) reimburse employees for necessary expenditures incurred in discharge of duties.

Further, Plaintiff alleges that he provided notice to the California Labor and Workforce Development Agency (“LWDA”) on November 15, 2017 and as, as the Complaint was filed on February 20, 2018, Plaintiff alleges that he properly complied with statutory requirements for bringing a PAGA action.

On November 5, 2018, Plaintiff, with leave of court, filed a First Amended Complaint (“FAC”). The FAC names Jeffrey Angel (“Angel”) as a new Plaintiff but otherwise does not add factual allegations or causes of action.

On August 29, 2019, Plaintiff named Swissport Fueling, Inc. and Swissport Cargo Services, Inc. as doe defendants.

On November 26, 2019, Swissport LLC and Defendant Swissport USA, Inc. (“Swissport Inc.”) (together, the “Swissport Defendants”) filed a motion requesting a stay of this action pending the judgment from an earlier filed PAGA action against them.

Plaintiffs now move for an order compelling the Swissport Defendants to provide further responses to request for production, sets one. The Swissport Defendants oppose the motion.

Procedural History

On April 4, 2019, Plaintiffs propounded Requests for Production, Sets One to each of the Swissport Defendants. (see Declaration of Julia Wells in support of each Motion (“Wells Decl.”), ¶ 5.) Defendants served objection only responses to these requests on May 13, 2019. (Wells Decl. ¶ 6.)

The Swissport Defendants’ motion to compel arbitration was heard on May 14, 2019, at which time this court denied the motion without prejudice but stayed discovery for ninety (90) days pending the California Supreme Court’s decision in ZB, N.A. v. Superior Court of San Diego County (2019) 8 Cal.5th 175 (Lawson). (Wells Decl. ¶ 7; May 14, 2019 minute order on Motion to Compel Arbitration.)

On October 15, 2019, the Swissport Defendants served amended responses to requests for production. (Wells Decl. ¶ 10.) These responses also allegedly continued to contain only objections without substantive responses. (Id.)

The Swissport Defendants have not provided further supplemental responses to date.

The Parties’ Meet and Confer Efforts

On September 25, 2019, after the 90-day period expired, Plaintiffs’ counsel sent a meet and confer letter regarding responses to Plaintiffs’ requests for production. (Wells Decl. ¶ 8, Exhibit A.) The meet and confer letter discussed the Swissport Defendants’ objections by category and contended that each category of objections was meritless. (Id.) On October 2, 2019, the parties met and conferred telephonically, at which time the Swissport Defendants’ counsel allegedly agreed to provide further responses. (Wells Decl. ¶ 9.)

On October 15, 2019, the Swissport Defendants served amended responses.

On November 20, 2019, Plaintiffs’ counsel sent a second meet and confer letter, asking for supplemental responses by November 27, 2019. (Wells Decl. ¶ 11, Exhibit B.) The letter again addressed the Swissport Defendants’ responses, which consisted of both old and new objections, and concluded that all objections were meritless and substance responses were required. (Id.) The letter advised that Plaintiffs intended to move to compel if further responses were not provided by the date requested. (Id.) Plaintiffs filed the instant motions on December 4, 2019. According to Defendants the motion was not served until December 5, 2019, 51 days after the service of supplemental responses.

Discussion

Timeliness of Motions

Pursuant to Code of Civil Procedure section 2031.310, subdivision (c), a motion to compel further responses to request for production must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., §§ 1013, subd. (a); 2031.310, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2031.310, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).)

Here, as discussed above, the instant motions were filed on December 4, 2019. Plaintiffs contend on reply that this constitutes timely filing because the Swissport Defendants’ responses were never served with verifications and, as such, the 45-day period was never triggered. (see Wells Decl. in support of Reply, ¶ 4.) The Swissport Defendants contend that the motions are untimely because it was served 51 days after the amended responses were served, or on December 5, 2019. (Opposition, 5.)

Responses to discovery that only state objections, need to be signed by counsel, but there is nothing for the client to verify, so no verification is necessary. The motions are untimely.

Discussion

Under the Discovery Act, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)

On receipt of responses to requests for production, the propounding party may move for an order compelling a further response if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit. (See Code Civ. Proc., §§ 2030.310, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

The Swissport Defendants contend that the motions must be denied for failure to fully comply with California Rules of Court, Rule 3.1345. Here, Plaintiffs did not include the definitions of various terms in these requests, such as COVERED EMPLOYEES. Neither did Plaintiffs submit copies of the requests they served, including the definitions as exhibits. Because of its incompleteness, the court is unable to fully evaluate Plaintiffs’ motion as to each requests without a complete separate statement in support of each motion.

Failure to provide a complete separate statement that conforms to the California Rules of Court is grounds to deny a motion to compel. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893[finding as deficient a separate statement that grouped several responses to discovery into one, truncated lengthier responses to some discovery, and contained an unclear explanation for compelling “further responses, answers, or production.”].)

As such, Plaintiffs’ motion is DENIED.