DeclarationCal. Super. - 6th Dist.June 17, 201910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS 8: BOCKIUS LLP ATTORNEYS AT LAw COSTA MESA 1QCV349023 Santa Clara - Civil MORGAN, LEWIS & BOCKIUS LLP Barbara J. Miller (SBN 167223) John D. Hayashi (SBN 21 1077) 600 Anton Boulevard Suite 1800 Costa Mesa, CA 92626-7653 Tel: +1.714.830.0600 Fax: +1.714.830.0700 barbara.miller@morganlewis.com john.hayashi@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP George S. Benjamin, Bar No. 273240 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3 132 Tel: +1.213.612.2500 Fax: +1.213.612.2501 georgebenjamin@morganlewis.com Attorneys for Defendants, MARRIOTT INTERNATIONAL, INC. and SJMEC, INC. Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/7l2021 5:11 PM Reviewed By: R. Walker Case #1 9CV349023 Envelope: 7425730 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ALYSHA JARAMILLO, as an aggrieved employee pursuant t0 the Private Attorneys General Act (“PAGA”), on behalf of the State of California and other aggrieved employees, Plaintiff, vs. MARRIOTT INTERNATIONAL, INC., a Delaware corporation; SJMEC, INC., a California corporation; and DOES 1 through 10, inclusive, Defendants. -1- Case N0. 19CV349023 DECLARATION OF BARBARA J. MILLER IN SUPPORT OF DEFENDANTS, MARRIOTT INTERNATIONAL, INC. AND SJMEC, INC.’S REPLY IN SUPPORT OF THEIR MOTION TO STRIKE PLAINTIFF’S THIRD AMENDED COMPLAINT, OR ALTERNATIVELY, DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT Date: October 21, 2021 Time: 1:30 pm. Dept: 1 Judge: Hon. Sunil R. Kulkarni Complaint Filed: June 17, 2019 SAC Filed: March 26, 2021 TAC Filed: June 1, 2021 DECLARATION OF B. MILLER ISO DEFENDANTS’ REPLY ISO MOTION TO STRIKE OR DEMURRER TO PLAINTIFF’S TAC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW COSTA MESA DECLARATION OF BARBARA J. MILLER I, Barbara J. Miller, declare as follows: 1. I am a member of the California Bar and an attorney with Morgan, Lewis & Bockius, LLP, counsel of record for Defendants, Marriott International, Inc. (“MII”) and SJMEC, Inc. (“SJMEC”) (collectively, “Defendants”) in the above-captioned litigation. Ihave personal knowledge of the facts set forth in this declaration, and if called as a witness I could and would competently testify thereto. 2. Attached hereto as Exhibit A is a true and correct copy of the Court’s February 24, 2021 Order Concerning Defendant SJMEC Inc.’s Demurrer To Plaintiff’ s First Amended Complaint. 3. Attached hereto as Exhibit B is a true and correct copy of Plaintiff’s May 28, 2020 Informal Discovery Conference Statement filed in this action. I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct. Executed this 7th day of October, 2021 at Costa Mesa, California. @x/(W Barbara J. Miller -2- DECLARATION OF B. MILLER ISO DEFENDANTS’ REPLY ISO MOTION TO STRIKE OR DEMURRER TO PLAINTIFF’S TAC EXHIBIT A KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/24/2021 8:51 AM Reviewed By: R. Walker Case #1 9CV349023 Envelope: 5901391 ORDER ON SUBMITTED MATTER SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ALYSHA JARAMILLO, Case N0.: 19CV349023 Plaintiff, ORDER CONCERNING DEFENDANT SJMEC INC.’S V. DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT MARRIOTT INTERNATIONAL, INC, et al., Defendants. In this Private Attorneys General Act (“PAGA”) case, PlaintiffAlysha Jaramillo named one of her employers in a timely PAGA administrative notice, but did not name her other alleged employer in a PAGA notice until after the limitations period had run. Plaintiff argues the relation back 0r alter ego doctrines (0r both) apply t0 save her PAGA claim against the second employer. Unsurprisingly, the second employer (Defendant SJMEC, Inc.) disagrees and has filed a demurrer t0 the operative First Amended Complaint (“FAC”), arguing that Plaintiff failed to timely exhaust her PAGA claims as t0 SJMEC. Plaintiff opposes the demurrer. As discussed below, the Court SUSTAINS SJMEC’S demurrer because the allegations in the FAC d0 not support the applicability 0f the relation back and alter ego doctrines. The Court will give Plaintiff 30 days’ leave t0 amend her complaint, however. KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO I. BACKGROUND A. Factual According t0 the FAC, Defendants Marriott International, Inc. and SJMEC own and operate a chain 0f hotels under various brands nationwide and throughout California, including approximately 52 Marriott hotel locations in California. (FAC, 1] 21 .) Defendants maintain their corporate headquarters in Bethesda, Maryland, with a centralized Human Resources department responsible for recruiting and hiring employees, as well as communicating and implementing Defendants’ company-wide policies t0 employees throughout California. (Id.,W 22-23.) Defendants allegedly are one another’s agents, employees, alter egos, and/or joint venturers, 0r work in concert with one another, ratify one another’s actions, and/or aid and abet one another with regard t0 the acts and omissions alleged by Plaintiff. (161.,W 8-13.) They are joint employers 0f the aggrieved employees under California law and alter egos. (Id,W 15-20.) Plaintiff worked for Defendants at their hotel in San Jose as an hourly, non-exempt Front Desk Agent from approximately October 2016 t0 March 11, 2019. (FAC, 1] 7.) She typically worked 4 t0 8 hours per day, 6 days per week, with job duties that included greeting hotel guests as they entered and exited the concierge lounge and providing customer service t0 the hotel’s patrons. (Ibid) Plaintiff alleges that the front desk, registration desk, concierge desk, and concierge areas of Defendants’ California hotels are generally similar in their layout and design, and have adequate space for the presence and use 0f a seat 0r stool by employees assigned t0 perform duties in these areas. (FAC, 1] 24.) Plaintiff and other aggrieved employees spend a substantial portion 0f their days in these areas, and according t0 Plaintiff, their assignments can reasonably be accomplished from a seated position. (Id., 1] 25.) Defendants could have provided Plaintiff and other aggrieved employees with a seat 0r stool with reasonable 0r n0 modification t0 these work areas, but instead denied them seating and forced them t0 stand throughout the day. (1d,, 1] 24.) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO B. Procedural Based 0n these allegations, Plaintiff asserts two causes 0f action under PAGA: (1) failure t0 provide suitable seating in Violation 0f Labor Code section 1198 and California Code 0f Regulations, title 8, section 11050(14)(A); and (2) failure t0 provide suitable seating in Violation 0f Labor Code section 1198 and California Code 0f Regulations, title 8, section 11050(14)(B). Plaintiffs original complaint, filed in June 2019, named only Marriott as a defendant and attached the PAGA notice she had sent t0 the Labor and Workforce Development Agency (“LWDA”) in April 2019. (Complaint, EX. 1.) Her FAC, filed in June 2020, adds SJMEC as a defendant, but otherwise makes n0 substantive change t0 her PAGA claims. The FAC attaches the PAGA notice naming SJMEC (and Marriott) sent to the LWDA in April 2020. (FAC, EX. 2.) SJMEC now demurs t0 the FAC; Plaintiff opposes this motion. The Court heard oral argument 0n February 18, 2021, and took the matter under submission. The Court now provides its final order. II. LEGAL STANDARD The function 0f a demurrer is t0 test the legal sufficiency 0f a pleading. (Trs. ofCapital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621 .) Consequently, “[a] demurrer reaches only t0 the contents 0f the pleading and such matters as may be considered under the doctrine ofjudicial notice.” (South Shore Land C0. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code CiV. Proc., § 430.30, subd. (a).) “It is not the ordinary function 0f a demurrer t0 test the truth 0f the plaintiff’s allegations 0r the accuracy with which he describes the defendant’s conduct. Thus, the facts alleged in the pleading are deemed t0 be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) In ruling on a demurrer, the allegations 0f the complaint must be liberally construed, with a View t0 substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions 0r conclusions 0f law 0r fact.” (George v. Automobile Club KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120.) A demurrer will succeed where the allegations and matters subject t0 judicial notice clearly disclose a defense 0r bar t0 recovery. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) III. REQUESTS FOR JUDICIAL NOTICE SJMEC’S request for judicial notice 0f Plaintiff’s collective bargaining agreement is DENIED. Here, SJMEC asks the Court t0 rely 0n the agreement t0 conclude that it, and not Marriott, is Plaintiff” s true employer. This is a disputed issue between the parties, and is not a proper subject ofjudicial notice. (See Fremont Indem. C0. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114-1 15 [“a court cannot by means ofjudicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears t0 show”].) Plaintiffs request for judicial notice ofj oint case management statements filed by the parties in this action is GRANTED. (EVid. Code, § 452, subd. (d).) IV. PAGA’S NOTICE REQUIREMENT “Before bringing a PAGA claim, a plaintiff must comply with administrative procedures outlined in section 2699.3, requiring notice t0 the LWDA and allowing the employer an opportunity t0 cure” certain Violations. (Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, 785.) The notice requirement was added t0 PAGA t0 improve the statute “by allowing the [LWDA] t0 act first 0n more ‘serious’ Violations such as wage and hour Violations and give employers an opportunity t0 cure less serious Violations.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 375.) “The evident purpose 0f the notice requirement is t0 afford the relevant state agency the opportunity t0 decide whether t0 allocate scarce resources t0 an investigation, a decision better made with knowledge 0f the allegations an aggrieved employee is making and any basis for those allegations,” while notice t0 the employer allows it t0 submit a response t0 the agency, “again thereby promoting an informed agency decision as t0 whether t0 allocate resources toward an investigation.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 545-546 (Williams).) Consistent with these goals, the notice must identify “the specific provisions 0f [the Labor Code] alleged t0 have been violated,” including KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO the “facts and theories” t0 support the alleged Violation. (Id. at p. 545, internal quotation marks and citation omitted.) Because the statute 0f limitations for a PAGA claim is one year, a plaintiff must submit a PAGA notice within one year 0f the Violation at issue. (Brown v. Ralphs Grocery C0. (2018) 28 Cal.App.5th 824, 839 (Brown).) Here, Plaintiff submitted an initial notice 0f her PAGA claims t0 the LWDA in April 2019, within the one year statute 0f limitations. (FAC, 1] 34.) The initial notice identified Marriott as Plaintiff’s employer. (Id., EX. 1.) Her complaint also was filed within the one-year limitations period. (SJMEC does not contend that this notice and the initial court complaint was untimely.) In April 2020, Plaintiff sent an amended notice t0 the LWDA, identifying the same seating policies as the basis for her claims, but now identifying both Marriott and SJMEC as her employers. (1d,, EX. 2.) She then amended her complaint in June 2020 t0 name SJMEC as a defendant. SJMEC contends that because Plaintiff’s amended PAGA notice was submitted more than a year after her employment terminated, it is untimely as t0 SJMEC, which means her FAC also is untimely. As an initial matter, while a plaintiffmay submit an amended PAGA notice, where such notice is untimely, it cannot expand the plaintiffs claims beyond those properly raised in the original notice. (See Brown, supra, 28 Cal.App.5th at p. 839.) Claims raised for the first time in an untimely notice are thus barred “except t0 the extent the later-added claims may relate back t0 [a timely noticed] PAGA claim.” (Id. at p. 829.) There is n0 dispute that Plaintiff” s 2020 amended notice is untimely. Thus, the Court must address whether the amended notice adding SJMEC as an employer relates back t0 the original notice naming only Marriott, albeit where the substantive claims are the same against Marriott and SJMEC.1 The Court also must address whether Plaintiff’s alter ego allegations in the FAC can save her claim against SJMEC. 1 T0 the extent that unpublished federal authorities cited by SJMEC suggested that the relation back doctrine does not apply in this context, the Court believes they are incorrect, and instead follows Brown. Notably, Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42 (Esparza) recently confirmed Brown’s holding “that untimely PAGA claims could not relate back t0 an earlier complaint except t0 the extent the earlier complaint was preceded by an adequate LWDA notice 5 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO V. DISCUSSION A. FEHA is Analogous t0 PAGA. The Court is unaware 0f any authority specifically addressing whether an amended PAGA notice naming a new defendant as the plaintiff” s employer relates back t0 an original PAGA notice that names a different defendant as the employer. Nor have the parties cited any such authority. But we can discern some clues from Brown. That case cited a Fair Employment and Housing Act (“FEHA”) case, Soldinger v. NorthwestAirlines (1996) 5 1 Cal.App.4th 345 (Soldinger), in support 0f its holding that later-added claims may relate back t0 a timely PAGA notice. (Brown, supra, 28 Cal.App.5th at p. 842 [citing Soldinger for the proposition that “[i]ncidents not described in a DFEH charge can be included in the subsequently filed lawsuit if they would necessarily have been discovered by investigation 0f the charged incidents, i.e., if the allegations in the civil complaint were ‘like 0r related’ t0 those specified in the DFEH charge”].) Brown provides essentially n0 guidance 0n the application 0f the administrative “relation back” doctrine it discusses, other than the citation t0 FEHA authority. The Court will accordingly follow the FEHA authorities 0n this issue. This makes sense because PAGA’S administrative notice requirement generally serves the same purposes as FEHA’S requirement. In particular, a timely, sufficient administrative notice permits a designated agency t0 decide whether t0 investigate and/or pursue an employee’s Claim. (Compare Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 15 1 3-15 1 5 [FEHA] With Iskanian v. CLS Transportation Los Angeles, LLC (20 14) 59 Cal.4th 348, 380 [PAGA].) It also allows potentially liable parties t0 respond at the investigative stage. (Compare Valdez, supra, 231 Cal.App.3d at pp. 1060-1061 [FEHA] With Williams, supra, 3 Cal.5th at p. 545 [PAGA].) At oral argument, Plaintiff focused 0n differences between PAGA and FEHA, but in the Court’s View, the administrative notice requirements in the two statutory for those claims.” (Esparza, supra, 36 Cal.App.5th at p. 62, emphasis added.) Esparza confirmed that Brown directed the trial court “t0 consider the extent t0 which any 0f the untimely PAGA claims could relate back t0 the original PAGA claim premised 0n the ‘adequately noticed’ Violation” at issue in that case. (Ibid.) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO schemes are very similar. Therefore, the Court will take guidance from cases interpreting FEHA’S administrative notice requirement. B. Alexander A recent FEHA case, Alexander v. Community Hospital OfLong Beach (2020) 46 Cal.App.5th 238 (Alexander), has facts very similar t0 those here. In Alexander, nurses submitted FEHA complaints against a hospital that contracted with two corporations t0 run its behavioral health unit. The nurses named one 0f the corporations (MCA) in their administrative complaints, but failed t0 name the other corporation (MPHS), although they did name in their administrative complaints the other corporation’s director as an individual. The Court 0f Appeal held that because “plaintiffs mentioned MPHS nowhere in their FEHA complaint,” this “constitutes a failure t0 exhaust their administrative remedies against MPHS and precludes their bringing a civil FEHA action against it.” (Id. at p. 25 1 .) This was true even where plaintiffs argued that “MPHS had actual notice 0f their FEHA complaints because the DFEH served them 0n MCA by way 0f . .. MCA’S director 0fhuman resources, who also functions as the human resources director for MPHS.” (Ibid) The Court 0f Appeal reasoned that even were we empowered and inclined t0 carve an equitable exception out 0f mandatory statutory language where an unnamed defendant receives actual notice 0f a FEHA complaint, we would not d0 so here because the DFEH, for one, had n0 notice that plaintiffs intended t0 accuse MPHS, and thus had n0 opportunity t0 contact MPHS, investigate its involvement in the alleged unlawful practice, 0r seek t0 resolve the matter by conference, conciliation, and persuasion. Further, even though MPHS may have known (by way 0f [the director 0f human resourcesD that plaintiffs could have named it in their administrative complaint, it was entitled t0 rely 0n their failure t0 d0 so as evidence that they did not intend t0 pursue a civil complaint against it, at least not until they had filed new administrative complaints. (Alexander, supra, 46 Cal.App.5th at pp. 25 1-252.) Alexander went 0n t0 reject plaintiffs’ theory that MCA, which had been named in a KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO timely administrative complaint, could be liable as the alter ego 0fMPHS, explaining that, even assuming MCA and MPHS had a unity 0f interest and ownership, “[t]he only possible inequity” supporting application 0f the alter ego doctrine “would be ifMCA’S concealed unity with MPHS caused plaintiffs t0 fail t0 name MPHS in their administrative complaints,” which plaintiffs had not established. (Alexander, supra, 46 Cal.App.5th at pp. 255-256.) Even before Alexander, federal courts have provided similar reasoning t0 that in Alexander. (See Polk v. OSI Elecs., Inc. (CD. Cal. Feb. 24, 2014, N0. CV-14-292-MWF (ASX)) 2014 U.S.Dist.LEXIS 199943, at *8 [despite adequate alter ego allegations, plaintiff’s failure t0 name defendant in the caption 0r body 0f his administrative complaints was fatal t0 his FEHA claim against that defendant]; Hall v. Kraft Heinz Food C0. (E.D. Cal. June 24, 2019, N0. 1:19- CV-00565-LJO-BAM) 2019 U.S.Dist.LEXIS 106381, at *1 1-12 [“The California Courts of Appeal have held that while a plaintiff can exhaust administrative remedies for claims against defendants not named in the caption 0f the administrative charge if those defendants are identified in the body 0f the charge, a harassment claim may not proceed against a defendant that is not named in either the caption 0r the body 0f the DFEH complaint.”].) The Court therefore will apply Alexander’s reasoning t0 our PAGA case. C. Application 0fAlexander t0 our Case Here, as in Alexander, Plaintiff only named one corporate employer (Marriott) in her original administrative notice. She named SJMEC only in her amended administrative notice, which occurred after the limitations period has run. Plaintiff also cannot rely upon alter ego 0r like allegations t0 relate back, since Plaintiff does not allege that SJMEC’S alleged unity with Marriott was concealed from her, 0r that she was prevented from investigating whether other entities related t0 Marriott could be deemed her employer. That means Plaintiff cannot rely at all 0n the earlier PAGA notice t0 support naming SJMEC as a defendant. And she can’t rely 0n the later notice because that notice was untimely. Plaintiff” s claim against SJMEC accordingly thus fails. Plaintiff contends that Alexander is distinguishable because it did not involve a failure t0 exhaust administrative remedies against the plaintififv ’ employer-in Alexander, it was the KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO employer 0f an individual alleged t0 have committed FEHA Violations who was not named in the administrative complaints. But this is not a meaningful distinction-either way, an actual alleged wrongdoer was not named in the only timely administrative notice. Plaintiff also notes that Alexander does not discuss the concept 0f “relation back” as such. True, but Alexander addressed the underlying issue 0fwhether an administrative complaint was adequate with regard t0 a party not named in that complaint, which is enough. Plaintiff also suggests Alexander is somehow inconsistent with Brown. The Court disagrees. The main thrust 0f both cases when it comes t0 administrative exhaustion is that there is n0 equitable exception, as a matter 0f law, t0 that requirement where the plaintiff failed to file an adequate administrative notice 0r complaint. (See Brown, supra, 28 Cal.App.5th at p. 840 [“Allowing equitable tolling t0 preserve PAGA claims where a plaintiff failed t0 file an adequate section 2699.3 notice for years is inconsistent with the text and purpose 0f section 2699.3, subdivision (a) and would defeat the entire purpose 0f PAGA.”].)2 Plaintiff then contends that since Alexander was decided after a trial, “[i]t provides n0 guidance as t0 whether Plaintiff has adequately pleaded that SJMEC is an alter-ego 0f Marriott in this case, for the purposes 0f a demurrer.” But Alexander held that even assuming unity 0f interest had been proved, “[t]he only possible inequity” potentially supporting application 0f the alter ego doctrine “would be ifMCA’S concealed unity with MPHS caused plaintiffs t0 fail t0 name MPHS in their administrative complaints,” which plaintiffs had not established. (Alexander, supra, 46 Cal.App.5th at pp. 255-256.) Plaintiff has not alleged in its FAC that Marriott concealed its connection with SJMEC, 0r that Marriott 0r SJMEC somehow prevented Plaintiff from finding out the “truth.” 2 Plaintiff argued at the February 21, 2021 hearing that Brown didn’t eliminate equitable tolling of the PAGA limitations period as a matter 0f law; rather, Brown just found that insufficient facts were pled t0 support that equitable doctrine. With respect, the Court disagrees with Plaintiff” s characterization 0fBrown. The above-quoted portion 0fBrown is not a fact-based argument, but rather a law-based argument. The Court hence finds that equitable tolling is not available as a matter 0f law t0 Plaintiff so as t0 rescue her PAGA claim against SJMEC. 3 In addition, it may be that the alter ego doctrine does not excuse exhaustion 0f administrative remedies. (See Medix Ambulance Serv., Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116.) The Court takes n0 position 0n that issue at this time. 9 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Plaintiff also cites a recent, unpublished federal opinion for the proposition that “courts may excuse a failure t0 name a defendant in the DFEH charge where the defendant is the plaintiff‘s former employer, the defendant is otherwise identifiable from the DFEH charge, and plaintiff’s failure to correctly name his employer is the result 0f a mistake.” (Bishop v. St. Jude Med. S.C., Inc. (D. Minn. July 29, 2020, N0. 19-CV-420 (NEB/ECW)) 2020 U.S.Dist.LEXIS 134404, at *10-11 (Bishop).) But the authorities relied 0n by Bishop address circumstances where the plaintiffnamed the defendant in his 0r her administrative complaint by its fictitious business name. The Court disagrees with Bishop that those authorities are appropriately applied t0 a plaintiffwho mistakenly names the wrong entity in an administrative complaint. After all, in Bishop, the right party was named in a timely administrative notice, albeit under the wrong name by mistake. That is not the situation here. Finally, Plaintiff urges that California courts would not apply Alexander in the PAGA context, due t0 “the statute’s purpose t0 ensure effective [Labor Code] enforcement.” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 87.) In other words, PAGA’S protections are interpreted broadly. (Id. at p. 83.) But FEHA is similarly “construed broadly t0 effectuate its purposes.” (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1213.) Accordingly, since PAGA and FEHA are remedial statutes with similar administrative notice requirements, it makes sense t0 construe the relation back and alter ego doctrines applicable t0 these notice requirements in the same way. This means the Court should follow Alexander. V. CONCLUSION Plaintiff failed to name SJMEC in a timely PAGA notice, and neither the relation back nor alter ego doctrines save Plaintiff’s claim. SJMEC’S demurrer is SUSTAINED. The Court is not convinced that Plaintiff can state a Viable non-time-barred claim against SJMEC, but will give her one last chance t0 try. Any amended complaint is due within 30 days 0f the date 0f service 0f this order. IT IS SO ORDERED. Date; February 24, 2021 ( The Honorable Sunil R. Kulkarni Judge 0f the Superior Court 10 EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Robert Drexler (SBN 1 191 19) Robert.Drexler@CapstoneLawyers.com Molly A. DeSario (SBN 230763) Molly.DeSario@CapstoneLawyers.com Jonathan Lee (SBN 267146) Jonathan.Lee@CapstoneLawyers.com Capstone Law APC 1875 Century Park East, Suite 1000 Los Angeles, California 90067 Telephone: (3 10) 556-4811 Facsimile: (3 10) 943-0396 Attorneys for Plaintiff Alysha Jaramillo SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA COUNTY ALYSHA JARAMILLO, as an aggrieved employee pursuant t0 the Private Attorneys General Act (“PAGA”), 0n behalf of the State 0f California and other aggrieved employees, Plaintiff, VS. MARRIOTT INTERNATIONAL, INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants. Case N0.: 19CV349023 Assigned for all purposes t0: Hon. Brian C. Walsh Department 1 PLAINTIFF’S INFORMAL DISCOVERY CONFERENCE STATEMENT Time: 10:00 am. Date: June 1, 2020 Place: Department 1 PLAINTIFF’S INFORMAL DISCOVERY CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE HONORABLE COURT, ALL PARTIES, AND THEIR RESPECTIVE ATTORNEYS OF RECORD: Plaintiff submits the following statement for the June 1, 2020 IDC. I. PLAINTIFF’S STATEMENT OF FACTS AND PROCEDURE During the case management conference 0n January 31, 2020, Defendant claimed that Plaintiff failed to name Plaintiffs correct employer-allegedly SJMEC, Inc. (“SMJEC”)-as a defendant in this case. Defendant also claimed that Marriott International, Inc. (Marriot”) was only SJMEC’S parent company, and improperly named as the sole defendant in this action. Defendant argued that discovery should be limited t0 determining whether Plaintiff worked in a concierge position, which would purportedly affect her “standing” t0 represent other aggrieved employees. And then Defendant contended that, even if Plaintiff does have standing, she could only seek discovery relevant t0 her particular hotel location in contravention 0f the binding law 0fHuflv. Securitas Security Services USA, Ina, 23 Cal. App. 5th 745, 761 (2018) and Williams v. Superior Court, 3 Cal. 5th 531, 544-49 (2017). The Court cautioned Defendant that it would apply the mandate 0n broad discovery outlined in Williams but instructed the parties t0 meet and confer regarding the appropriate defendant and a discovery plan. Pursuant t0 that order, the parties held a telephone conference 0n February 5, 2020 wherein Plaintiff requested that Defendant provide evidence that SJMEC was Plaintiff” s employer and that Marriott was not. Defendant agreed t0 provide Plaintiff” s collective bargaining agreement and wage statements. Plaintiff argued that, per Williams, discovery should not be phased based 0n Defendant’s claim that Plaintiff was not typical or adequate because those factors are not at issue in a PAGA case, and cannot limit discovery. Plaintiff also asked what specific discovery Defendant believed should be postponed and for what reason, but Defendant was unable t0 provide any other than t0 say that it should be limited to Plaintiff first and then her work location. Plaintiff told Defendant that she could not agree t0 hold off 0n any discovery unless and until Defendant provided a clearer picture 0f what it refused t0 answer and why although Plaintiff would consider a state-wide sampling 0f the aggrieved employee discovery if Defendant could provide the number 0f aggrieved Page 1 PLAINTIFF’S INFORMAL DISCOVERY CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employees and hotel locations so that the parties could further meet and confer. Plaintiff also agreed t0 send over Plaintiffs first set 0f discovery requests so that Defendant could review them and the parties could discuss their respective positions 0n narrowed request categories. Plaintiff” s counsel further explained that even if Plaintiff was sometimes able t0 sit during her work at the Concierge Lounge, Plaintiff alleges that she was unable t0 sit at other times during her work when reasonably able t0 d0 so, and thus that her standing could not possibly be at issue. After receiving Defendant’s collective bargaining agreement, Plaintiff agreed t0 add SJMEC, Inc. as a defendant employer and sent a letter t0 the LWDA regarding same. Plaintiff explained t0 Defendant that it would not agree t0 dismiss Marriott unless Defendant could provide evidence that it was not a joint employer, particularly in light 0f the fact that Defendant listed Marriott International, Inc. as Plaintiffs legal employer 0n its Labor Code Section 2810.5 Notice, and because Plaintiff’s employee handbooks and other documents bore Marriott International, Inc.’s name and not SJMEC’S. Plaintiffs counsel offered t0 and did forward a declaration provided by a defendant in another matter which Plaintiff agreed sufficiently established that it was not a proper employer, so that Defendant could d0 the same and support its dismissal. Defendant never responded that it would provide evidence that Marriott International, Inc. was not Plaintiff” s joint employer but Plaintiff agreed t0 withdraw her draft substantive discovery t0 Marriott and re-served limited discovery concerning only the employer relationship issue. Since this discovery is necessary t0 determine whether Marriott International, Inc. will maintain its status as a named defendant, Plaintiff asked defendant t0 provide responses within the standard 30-day time frame so that Plaintiff could determine her position 0n the issue before the IDC and June 19, 2020 CMC. Defendant never offered any further specifics regarding its position 0n the limitations 0f Plaintiff” s proposed merits-based discovery and never provided sampling size data. Instead, Defendant made a new argument that it should not have t0 respond t0 any discovery at all until the State permits hotel operations t0 re-open in light 0f C0Vid-19. Although Plaintiff is sensitive t0 the delays that may necessarily result from the pandemic, Plaintiff Page 2 PLAINTIFF’S INFORMAL DISCOVERY CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 explained that, while she would be flexible, a blanket stay 0n discovery is inappropriate because many 0f the documents and information t0 be discovered should still be accessible t0 Defendant. Plaintiff agreed, however, t0 hold off 0n discovery t0 SJMEC until after it was formally added t0 the Complaint which should occur 0n 0r around June 17, 2020, when the administrative exhaustion period for Plaintiff” s amended notice letter lapses. II. Plaintiff’s Proposed Discovery Plan Plaintiff proposes that Marriott provide substantive responses and documents t0 her first round 0f employer-based discovery 0n 0r before June 9, 2020, t0 the extent it has not already done so and that Defendant’s deadline t0 file a dispositive motion (t0 the extent required) be set for July 9, 2020 with a regular briefing schedule. Plaintiff proposes that there be n0 other limits 0n merits-based discovery except that Plaintiff will meet and confer with Defendant regarding a potential state-wide sampling 0f data for aggrieved employees. SJMEC will already enjoy a delay 0f discovery until at least June 17, 2020 when it can be added as a party. There is n0 reason t0 hold off 0n merits-based discovery t0 SJMEC while Marriott’s status is decided and Marriott does not offer one. Moreover, there is n0 standing 0r threshold proof requirement for Plaintiff here (see Hufl, 23 Cal. App. 5th at 761; Williams, 3 Cal. 5th at 544-49) and, even if there was one, Plaintiff’s allegation that she was unable t0 sit when performing work at stations other than the Concierge Lounge satisfies Defendant’s complaints. Lastly, Williams does not countenance staggered discovery based 0n a plaintiffs particular work location. See Williams, 3 Cal. 5th 531, generally (reversing trial court’s decision t0 limit aggrieved employee discovery t0 one store location). Even if Plaintiffs hotel maintained different seating policies and practices, Plaintiff can pursue seating Violations 0n behalf 0f all aggrieved employees under black-letter PAGA law. If Defendant wishes t0 waste its time filing a motion as t0 standing, it can d0 so on its own timeline without interfering with Plaintiff” s right t0 basic discovery. Moreover, a complete stay 0f discovery based 0n the pandemic is not warranted as there is n0 evidence that the employees needed t0 assist in responding t0 discovery are part 0f Defendant’s on-site everyday staff but are instead likely payroll, IT, and HR employees. Page 3 PLAINTIFF’S INFORMAL DISCOVERY CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: Mary 28, 2020 Respectfully submitted, Capstone Law APC Robert Drexler Molly A. DeSario Jonathan Lee Attorneys for Plaintiff Alysha Jaramillo Page 4 PLAINTIFF’S INFORMAL DISCOVERY CONFERENCE STATEMENT KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOflQm-PWNHO PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County 0f Los Angeles. I declare that I am over the age 0f eighteen (1 8) and not a party t0 this action. My business address is: Capstone Law APC, 1875 Century Park East, Suite 1000, Los Angeles, California 90067. On May 28, 2020, I served the within document(s) described below as: PLAINTIFF’S INFORMAL DISCOVERY CONFERENCE STATEMENT 0n the interested parties in this action by placing true copies thereon enclosed in sealed envelopes addressed as follows: Barbara J. Miller Joel M. Purles P. Bartholomew Quintans Morgan, Lewis & Bockius LLP 600 Anton Boulevard, Suite 1800 Costa Mesa, California 92626 barbara.miller@m0rganlewis. com joel.purles@m0rganlewis.com bart.auintans@m0r2anlewis.com ( ) MAIL: Ideposited such envelope in the mail at Los Angeles, California. The envelopes were mailed with postage thereon fully prepaid. (X) ELECTRONIC SERVICE: I caused the document(s) t0 be transmitted electronically Via One Legal eSerVice t0 the individuals listed above, as they exist 0n that database. This will constitute service 0f the document(s). ( ) PERSONAL: I caused such envelope t0 be delivered by hand t0 the individual(s) listed above at the address listed above Via a messenger service (Prolegal). ( ) OVERNIGHT COURIER: I caused the above-referenced document(s) t0 be delivered Via overnight courier service (FedEx) t0 the individuals at the address listed above. ( ) FACSIMILE: I caused the above-referenced document(s) t0 be transmitted t0 the above- named person at the telephone numbers above. (X) (STATE) I declare under penalty 0f perjury under the laws 0f the State 0f California that the above is true and correct. EXECUTED this document 0n May 28, 2020, at Los Angeles, California. fir Sandgl S. Acevedo PROOF 0F SERVICE QONUIAUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS 3: BOCKIUS LLP ATTORNEYS AT LAW COSTA MESA PROOF OF SERVICE Alysha Jaramillo v. Marriott International, Inc. Santa Clara County Superior Court Case No. 19CV349023 I am a resident of the State of California, employed in the County of Orange; I am over the age of eighteen years and not a party to the within action; my business address is 600 Anton Blvd., Suite 1800, Costa Mesa, California 92626. On October 7, 2021, I served on the interested parties in this action the within document(s) entitled: DECLARATION OF BARBARA J. MILLER IN SUPPORT OF DEFENDANTS, MARRIOTT INTERNATIONAL, INC. AND SJMEC, INC.’S REPLY IN SUPPORT OF THEIR MOTION TO STRIKE PLAINTIFF’S THIRD AMENDED COMPLAINT, OR ALTERNATIVELY, DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT [ X ] BY E-FILE: I caused such document(s) to be transmitted by e-file with the Clerk 0f the Court by e-serving through the ONE LEGAL e-file system, Which Will send a notice of electronic filing to the following: [X] BY OVERNIGHT MAIL: By FEDERAL EXPRESS, following ordinary business practices for collection and processing of correspondence with said overnight mail service, and said envelope(s) Will be deposited with said overnight mail service on said date in the ordinary course 0f business. Robert Drexler Attorneysfor Plaintifl Molly A. DeSario ALYSHA JARAMILLO Jonathan Lee Melissa Grant CAPSTONE LAW APC 1875 Century Park East, Ste. 1000 Los Angeles, CA 90067 Tel: 3 10.556.4811 Fax: 3 10.943 .0396 Email: R0bert.Drexler@CapstoneLawyers.com Molly.DeSario@CapstoneLawyers.com Jonathan.Lee@CapstoneLawyers.com Melissa.Grant@Capst0neLawyers.com [ XX ] STATE: I declare under penalty of perjury, under the laws of the State of California, that the above is true and correct. Executed on October 7, 2021, at Costa Mesa, California. Patricia Martin PROOF OF SERVICE DBZ/ 37046850.1