SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

MARCELO A. IGNELZI, on behalf of himself, all others similarly situated,

Plaintiff,

vs.

DA DEFENSE LOGISTICS HQ, LLC, a Texas limited liability company; and DOES 1 through 50, inclusive,

Defendants.
Case No. 2017-1-CV-318170

TENTATIVE RULING RE: DEMURRER TO AND MOTION TO STRIKE PLAINTIFF’S THIRD AMENDED COMPLAINT

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

Plaintiff Marcelo A. Ignelzi (“Plaintiff”) brings this putative class and representative action against defendants DA Defense Logistics HQ, LLC (“DA”) and Northrop Grumman Technical Services, Inc. (“Northrop”) (collectively, “Defendants”) for alleged violations of the Labor Code and Business and Professions Code. The Third Amended Complaint (“TAC”), filed on April 26, 2019, sets forth the following causes of action: (1) Failure to Provide Meal Periods; (2) Failure to Provide Rest Periods; (3) Failure to Pay Hourly Wages; (4) Failure to Indemnify; (5) Failure to Provide Accurate Written Wage Statements; (6) Failure to Timely Pay All Final Wages; (7) Unfair Competition; and (8) Civil Penalties. Now before the Court is Northrop’s demurrer to and motion to strike Plaintiff’s TAC.

II. REQUESTS FOR JUDICIAL NOTICE

A. Northrop’s Requests

In connection with the moving papers, Northrop requests judicial notice of the following:

(1) The results of a search of the Department of Industrial Relations PAGA Notice Public Search website for “Ignelzi” as the “business, law firm or individual” and either “PAGA Notice” or “Amended Notice”;

(2) Plaintiff’s October 25, 2017 PAGA Letter to the LWDA and DA; and

(3) Plaintiff’s March 28, 2019 “Amended” PAGA Letter to the LWDA, DA, and Northrop.

The request for judicial notice is GRANTED. (Evid. Code, § 452, subds. (c) and (h); see also Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750; see also Stoddart v. Express Services, Inc. (E.D. Cal. 2015) 2015 WL 5522142, at *3.)

In connection with the reply papers, Northrop requests judicial notice of the following :

(1) The Memorandum of Points and Authorities in Support of Defendant Lifetime Brands, Inc.’s Demurrer to Plaintiff’s Seventh Cause of Action in the Third Amended Complaint filed in the Camacho v. CL Staffing Inc., et al. action brought by the Setareh Law Firm in the Superior Court of the County of San Bernardino, Case No. CIVDS1615487, on April 19, 2019; and
(2) The June 13, 2019 Minute Order sustaining Defendant Lifetime Brands, Inc.’s Demurrer to Plaintiff’s Seventh Cause of Action without leave to amend in Camacho v. CL Staffing Inc., et al.
The memorandum of points and authorities and order from a non-citable, non-binding superior court case are not relevant and therefore not judicially noticeable. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063 [Although a court may judicially notice a variety of matters, only relevant material may be noticed.].) Accordingly, the reply request for judicial notice is DENIED.

B. Plaintiff’s Request

Plaintiff requests judicial notice of the November 18, 2016 Order in the case of Hickman v. AC Square, Inc., No. 522172, in the San Mateo County Superior Court. As stated previously, an order from a non-citable, non-binding superior court case is not relevant and therefore not judicially noticeable. (See Mangini v. R. J. Reynolds Tobacco Co., supra, 7 Cal. 4th at p. 1063 Accordingly, Plaintiff’s request for judicial notice is DENIED.

III. DISCUSSION

There are three main parts to Northrop’s motion: (1) demurrer to Plaintiff’s TAC for failure to state a class action against Northrop; (2) motion to strike references to Labor Code sections 204 and 1197.1 in the first, second, and third causes of action; and (3) demurrer to Plaintiff’s eighth cause of action.

A. Demurrer to Class Action Allegations

As explained by one case:

Class certification is generally not decided at the pleading stage of a lawsuit. The preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation. However, if the defects in the class action allegations appear on the face of the complaint or by matters subject to judicial notice, the putative class action may be defeated by a demurrer or motion to strike.

(In re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1298-1299, quotation marks, brackets, and citations omitted.)

California Code of Civil Procedure section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. . . .” As interpreted by the California Supreme Court, Section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)

The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and, (3) class representatives who can adequately represent the class. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.)

Northrop argues Plaintiff’s alleged “Northrop Class” cannot be certified because Plaintiff cannot establish the requisite community of interest, ascertainability of a putative class, or superiority of the class action vehicle. The Northrop Class is defined as “All persons employed by Northrop and/or any staffing agencies and/or any other third parties in hourly or non-exempt positions in California during the Relevant Time Period.” (TAC, ¶ 12.) Plaintiff also alleges four sub-classes against Northrop: (1) Northrop Meal Period Sub-Class; (2) Northrop Rest Period Sub-Class; (3) Northrop Wage Statement Penalties Sub-Class; and (4) Northrop Waiting Time Penalties Sub-Class. (Ibid.)

The Northrop Class definition is clearly overbroad and defective. It includes all persons employed by “any staffing agencies and/or any other third parties . . . in California. . . .” In other words, it includes all employees working in California during the class period. Plaintiff makes no effort to explain what unlawful common policy or practice was applied to all employees in California by all employers in California and there is also no reasonable method by which all of these class members could be identified (i.e. ascertainability). It seems highly unlikely Plaintiff intended to define the class in such a broad manner. The definition must be amended.

B. Motion to Strike References to Labor Code Sections 204 and 1197.1

Northrop argues there is no private right of action created by Labor Code sections 204 and 1197.1. Northrop therefore moves to strike references to those statutes in the first, second, and third causes of action. Plaintiff concedes there is no private right of action pursuant to Labor Code sections 204 and 1197.1. Accordingly, the motion to strike is granted.

C. Demurrer to Eighth Cause of Action

The eighth cause of action is one for civil penalties under PAGA. Northrop argues: (1) the PAGA claim is time-barred because the PAGA notice was not filed within one year ; and (2) Plaintiff lacks standing because he failed to properly exhaust PAGA’s mandatory administrative prerequisites.

The statute of limitations for PAGA claims is one year. (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839.) Prior to filing a PAGA lawsuit, a party must provide “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.” (Lab. Code, § 2699.3, subd. (a)(1)(A).)

Plaintiff’s original PAGA notice did not include claims against Northrop; it only addressed DA. (Defendant Northrop Grumman Technical Services, Inc.’s Request for Judicial Notice in Support of Demurrer to and Motion to Strike Plaintiff’s Third Amended Complaint (“Northrop RJN”), Ex. B.) Plaintiff alleges he worked for DA until May 25, 2017. (TAC, ¶ 23.) Plaintiff did not send the Amended PAGA Notice (including Northrop) to the LWDA until March 28, 2019, close to two years later. Therefore, Plaintiff could not have timely exhausted his administrative remedies prior to filing a lawsuit against Northrop.

Plaintiff argues his claims against Northrop relate back to the earlier-filed PAGA claim, making his claim against Northrop timely. Under the relation back doctrine, an amended complaint is deemed to have been filed at the time of the earlier complaint if the amended complaint (1) rests on the same general set of facts, (2) involves the same injury, and (3) refers to the same
instrumentality. (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 841, citing Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 409.) However, “[t]he doctrine cannot be used to frustrate the intent of the Legislature to require compliance with administrative procedures as a condition to filing an action.” (Brown v. Ralphs Grocery Co., supra, 28 Cal.App.5th at p. 841.)

A party may not “use the relation back doctrine to litigate untimely PAGA claims without giving notice to the LWDA within the limitations period.” (Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 64.) “[T]hat use of the doctrine would frustrate the LWDA’s interests in a manner contrary to legislative intent. (Ibid.)

Plaintiff’s original PAGA Notice did not include any reference to Northrop. Plaintiff now seeks to assert a PAGA cause of action against a new defendant (Northrop) on behalf of a new group of aggrieved employees. Plaintiff failed to timely exhaust administrative remedies against Northrop and cannot do so retroactively now.

In light of this conclusion, the Court need not address Northrop’s alternative argument that Plaintiff lacks standing to pursue PAGA claims because he failed to provide facts and theories in the Amended PAGA Notice.

D. Conclusion

Northrop’s demurrer is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND as to the class claims against Northrop. Northrop’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the eighth cause of action. Northrop’s motion to strike is GRANTED WITHOUT LEAVE TO AMEND.

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