Jeri Farrar v. Catalina Restaurant Group, Inc. et al

OPPOSITION to NOTICE OF MOTION AND MOTION for Summary Judgment 77

C.D. Cal.December 29, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 0 Jeff R. Dingwall EIGHT & SAND 110 W. C Street, Suite 1903 San Diego, CA 92101 T: 619-796-3464 F: 619-717-8762 E: jeff@eightandsandlaw.com TRAN LAW FIRM L.L.P Trang Q. Tran Federal I.D: 20361 Texas Bar No. 00795787 2537 S. Gessner Street, Suite 104 Houston, Texas 77063 T: 713-223-8855 F: 713-623-6399 E: ttran@tranlawllp.com IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA JERI FARRAR, KYLE WHITNEY, GARY GRAHAM, BILL DIZON, FRANCISCO JIMENEZ AND GINA MCMAHON, Plaintiffs, vs. CATALINA RESTAURANT GROUP, INC. and FOOD MANAGEMENT PARTNERS, INC, Defendants. Case No.: 2:16-cv-09066-DPP-JPR PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Date: January 22, 2018 Time: 10:00 a.m. Place: Courtroom 9C Judge: Hon. Dean D. Pregerson Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 1 of 18 Page ID #:1261 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - i TABLE OF CONTENTS I. INTRODUCTION .............................................................................................. 1 II. BACKGROUND ................................................................................................ 1 III. FACTS ............................................................................................................... 3 IV. ARGUMENT AND AUTHORITY ................................................................. 10 A. DEFENDANTS’ ACTION WAS A MASS LAYOFF AND PLANT CLOSURE ............ 10 1. DEFENDANTS FAILED TO MEET THEIR BURDEN OF PROOF ........................... 10 2. CLOSURE OF THE CORPORATE OFFICE EQUATES TO A PLANT CLOSURE ....... 11 3. FACT QUESTION REMAINS ON NUMBER OF EMPLOYEES TERMINATED ......... 13 V. CONCLUSION ................................................................................................. 15 Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 2 of 18 Page ID #:1262 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - ii TABLE OF AUTHORITIES CASES Collins v. Gee W. Seattle LLC, 631 F.3d 1001, 1002 (9th Cir. 2011) .......... 2, 11, 12 REGULATIONS 29 U.S.C. § 2101(a)(5) .............................................................................................. 2 29 U.S.C. § 2101(a)(6) .............................................................................................. 2 29 U.S.C. § 2101(a)(6)(A) ................................................................................ 10, 11 29 U.S. C. § 2102(d) ............................................................................................... 10 Worker Adjustment and Retraining Notification, 54 Fed.Reg. 16042-01, 16047 (April 20, 1989) ................................................................................................... 11 Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 3 of 18 Page ID #:1263 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 1 I. INTRODUCTION Plaintiffs worked at the corporate headquarters of Catalina Restaurant Group Inc. (CRG) at 2200 Faraday Avenue, Suite 250, Carlsbad, California 92008. As of April 1, 2015, there were fifty-three (53) employees at the corporate headquarter. From the time Food Management Partners, Inc. (FMP) acquired and took control of CRG on April 1, 2015 through April 24, 2015, fifty-three (53) employees at the company headquarters lost their jobs. Defendants concede that they did not give the 60 days advance notice required by the WARN Act. Defendants claim that since they only laid of 46 or 47 employees (not 50) in April of 2015, they do not qualify as a plant closing or mass lay off under the WARN Act. This Court should deny Defendants’ motion for summary judgment since Plaintiffs present sufficient evidence creating triable issues of fact on whether Defendant laid off 50 employees at its corporate headquarters and violated the federal and California WARN Act by failing to provide 60 days written notice of the layoff. II. BACKGROUND Defendants Catalina Restaurant Group, Inc. and Food Management Partners, Inc. (collectively as “Defendants”) are moving to dismiss the case based solely on the issue of the number of people they laid off are less than the 50 employees required to be a plant closing or mass layoff under the WARN Act. 29 U.S.C. § Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 4 of 18 Page ID #:1264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 2 2101(a)(5). Out of the 53 employees Defendants laid-off in April 2015, Defendants discount 6 or 7 of them without identifying or explaining the reason to omit them. The term "employment loss" means an employment termination, other than a discharge for cause, voluntary departure, or retirement. 29 U.S.C. § 2101(a)(6). Collins v. Gee W. Seattle LLC, 631 F.3d 1001, 1002 (9th Cir. 2011). The Ross Case Does Not Apply here. The defendant is mistaken in its reliance on the Court’s ruling in the Ross case. Docket 77-:6. The Court has already addressed this issue in its Order Denying Defendants’ Motion for Sanctions. Docket 65 (“Order Denying Sanctions”.) In the Order Denying Sanctions, page 3, the Court noted that “[a]lthough a previous set of plaintiffs in Ross failed to contest Defendants’ evidence regarding the number of employees laid off Catalina’s corporate headquarters, this fact does not bind a subsequent set of plaintiffs in a separate lawsuit.” Docket 65:3. Defendants dedicate most of their summary judgment briefing repeating the same argument they used in the Ross case. Unlike the Ross case, the plaintiffs in this case do not need to aggregate multiple sites to meet the 50-employee threshold. The corporate office alone had 53 employees laid off within a 90-day period beginning April 1, 2015. Therefore, Plaintiffs will not respond to Defendants’ argument about aggregating multiple sites. Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 5 of 18 Page ID #:1265 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 3 III. FACTS FMP acquired CRG on April 1, 2015. Mr. Peter Donbavand is a Vice President of Operations of Defendant Catalina Restaurant Group. (Exhibit 1, Donbavand Dep 11:4-14). Mr. Donbavand, indirectly through his ownership interest in FMC Rewards is a part-owner of Defendant CRG. (Exhibit 2 Donbavand Dep 14:14-25; 15:1-4). Peter Donbavand testified that FMP is the management services company that provides accounting and IT and HR payroll support to various businesses. (Exhibit 2 Donbavand Dep 7:14-18) Defendant CRG transferred all of its work, after a brief transition period, from Carlsbad, CA. to San Antonio, Texas. (Exhibit 1, Donbavand Dep 19:24-25; 20:1-12). After that transition period, Defendant CRG closed the Carlsbad office completely. (Exhibit 1 Donbavand Dep 20:6-7). In closing the Carlsbad office, Defendant CRG, terminated the employment of 53 employees. On April 1, 2015. Defendants had 53 employees. (Exhibit 3 Payroll Record D002129)1. On April 3, 2015, Defendant CRG terminated 29 employees. (Exhibit 3 Payroll Record D002132 - D002134). On or about April 15, 2015, Defendant CRG had terminated 10 more employees. 1 Defendants placed the word true on the furthest right hand column on Exhibit 3 - D002130 - D002131 with the payroll run for those employees terminated on April 3, 2015. Exhibit 3 - D002133 - D002134). Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 6 of 18 Page ID #:1266 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 4 (Exhibit 3 Payroll Record D002135 - D002136 and D002142). On or about April 24, 2015 Defendant CRG had terminated 14 more employees. (Exhibit 3 Payroll Record D002139 - D002140; D002142 - D002143). By April 24, 2015, Defendant CRG had ended the employment of all 53 employees. (Exhibit 3 Payroll Record: D002149).2 Defendant CRG terminated 29 employees on April 3, 2015. Defendant CRG terminated all 53 employees by April 24, 2015. Defendant CRG, on a whim, sometimes claims it terminated 46 employees in April 2015. (See Motion Docket No. 77-1 Page 9). (Exhibit 4 Declaration of Peter Donbavand, Dkt. No. 53-4, ¶ 6.) In the past Defendant CRG testifies it eliminated 47 positions in April 2015. (Exhibit 5 Declaration of Donbavand, Dkt. No. 74-2, ¶ 6). Below is a summary of the payroll record showing that Defendant CRG terminated 53 employees at the corporate headquarters in April of 2015. Employee Name Termination Date Source 1. ARMSTRONG, PATRICK W. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 2 Defendants did not place the word true in the furthest right-hand column of any of these terminated employees thus indicating that these employees no longer work for Defendants. Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 7 of 18 Page ID #:1267 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 5 2. BUCHAN, JASON K. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 3. STEVENS, SEAN 4/3/2015 Exhibit 3 Payroll Record: 4D002132 - D002134 4. WEBSTER, SUZANNE 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 5. ECCLES, CECILIA M. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 6. GRAHAM, GARY L. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 7. JIMENEZ, JAVIER 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 8. KENSINGER, JIM 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 9. LYNCH, MICHELLE 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 10. FOX, DAVID E. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 11. MCMAHON, GINA M. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 12. MCPHETERS, JON P. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 13. FARRAR, JERI L. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 14. MANLEY, JOHNNY F. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 8 of 18 Page ID #:1268 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 6 15. REYES, GADDY 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 16. WEYER, THOMAS 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 17. BHUTTO, VICTORIA A. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 18. JIMENEZ, FRANCISCO 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 19. NETANE, LUSEANE M. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 20. POORMAN, PENNY 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 21. SABA, NICOLA 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 22. CASTRO, ROSA MARIA 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 23. FLOHRE, MELISSA R. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 24. GUZMAN GUTIERREZ, SONIA I. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 25. HARRIS, MARY THERESA 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 26. WEATHERSBY, MARIA E. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 27. ASBURY, LUCIA 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 9 of 18 Page ID #:1269 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 7 28. MARRON, KEITH M. 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 29. TORRES, ANTONIO 4/3/2015 Exhibit 3 Payroll Record: D002132 - D002134 30. JONES, MICHAEL L. 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 31. CANIZALEZ, MARICELA 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 32. DIZON, WILLIAM O. 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 33. HAMZE, WALID S. 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 34. MCCLURE, CARL 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 35. STEELE, DAVID 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 36. WHITNEY, KYLE 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 37. CALDARON, PAUL I 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 and D002142 38. MCGOVERN, LYNN R. 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 39. MEDRANO, JOSE 4/15/2015 Exhibit 3 Payroll Record: D002135 - D002136 40. LEDESMA, YESICA 4/24/2015 Exhibit 3 Payroll Record: Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 10 of 18 Page ID #:1270 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 8 D002142 41. MENESES, SIMON 4/24/2015 Exhibit 3 Payroll Record: D002142 42. TILLER, KARYN J. 4/24/2015 Exhibit 3 Payroll Record: D002142 43. WATTS, EUGENE 4/24/2015 Exhibit 3 Payroll Record: D002142 44. JACOBS, MATTHEW A. 4/24/2015 Exhibit 3 Payroll Record: D002142 45. MARTINEZ, CHARLES 4/24/2015 Exhibit 3 Payroll Record: D002142 46. BAUGH, JO A. 4/24/2015 Exhibit 3 Payroll Record: D002142 47. WADE, SHERI R. 4/24/2015 Exhibit 3 Payroll Record: D002142 48. REILLY, MARY 4/24/2015 Exhibit 3 Payroll Record: D002143 49. KING, YVONNE R. 4/24/2015 Exhibit 3 Payroll Record: D002143 50. CLARK, WILLIAM DON 4/24/2015 Exhibit 3 Payroll Record: D002136 (employed on 4/15/2015) compared to Exhibit 3 Payroll Record: D002139 (no longer employed) Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 11 of 18 Page ID #:1271 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 9 51. MILLER, ROBERT G. 4/24/2015 Exhibit 3 Payroll Record: D002136 (employed on 4/15/2015) compared to Exhibit 3 Payroll Record: D002139 (no longer employed) 52. BARKLEY, CHRISTOPHER L. 4/24/15 Exhibit 3 Payroll Record: D002136 (employed on 4/15/2015) compared to Exhibit 3 Payroll Record: D002140 (no longer employed) 53. PLAZA, VINCENT 4/24/15 Exhibit 3 Payroll Record: D002136 (employed on 4/15/2015) compared to Exhibit 3 Payroll Record: D002140 (no longer employed) 3 Defendant FMP and the Vice President of CRG are sophisticated parties who did not send out lay-off notices because they thought they avoided the 50- employee threshold of the WARN Act. Peter Donbavand testified in his deposition that on April 1, 2015, he was appointed by the owners of CRG to become the Vice President of CRG. (See Exhibit 2 Donbavand Dep 13: 6-17) Mr. Donbavand was 3 Peter Donbavand’s declaration refers to an Exhibit 5 containing a spreadsheet purportedly to show the number of employees but failed to do so. Docket No. 74-2 Pg. 2. Defendants have not provided any company records showing the number of employees laid off in April and May of 2015. Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 12 of 18 Page ID #:1272 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 10 one of the decision makers who decided to terminate employees to terminate in the corporate office. (Exhibit 2 Donbavand Dep 29:20-24) Mr. Donbavand testified that they did not give out 60-day layoff notices because they didn’t meet the 50- employee threshold. (Exhibit 2 Donbavand Dep 34:15-25) Defendant CRG’s payroll records shows that it terminated 53 employees in April 2015. IV. ARGUMENT AND AUTHORITY A. Defendants’ Action was a Mass Layoff and Plant Closure The only dispute concerning whether Defendants ordered a "mass layoff" or “plant closing” under the Act is whether at least fifty employees, suffered an "employment loss" in the period encompassing April 1, 2015 through May 26, 2015. 1. Defendants Failed to Meet Their Burden of Proof Plaintiffs have established a mass layoff and plant closing took place by providing summary judgment evidence of 53 employees being terminated between April 1, 2015 through April 24, 2015. 29 U.S.C. § 2101(a)(6)(A) defines the term "employment loss" as "an employment termination, other than a discharge for cause, voluntary departure, or retirement." It is the Defendants' burden under 29 U.S. C. § 2102(d) to prove that employment losses at the corporate office are the result of "separate and distinct actions" and prove that the 53 employees terminated were a discharge for cause, Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 13 of 18 Page ID #:1273 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 11 voluntary departure, or retirement. 29 U.S.C. § 2101(a)(6)(A). The Defendants have failed to establish their burden in their briefing or in discovery. 2. Closure of the Corporate Office Equates to a Plant Closure The Ninth Circuit gives guidance as to the correct method of calculating the number of employees who suffer an employment loss. “...as the Department of Labor noted, because employers must determine at least 60 days in advance whether notice must be given, employers must accurately determine how many employees will lose employment. See Worker Adjustment and Retraining Notification, 54 Fed.Reg. 16042-01, 16047 (April 20, 1989) (“an employer faced with a decision about whether to give notice may be well advised to base its decision on the number of positions to be eliminated, which is a known fact at the relevant time.”). The DOL suggests, the starting point for determining whether there is an actual or reasonably expected employment loss (as a consequence of a plant closing) is to determine how many positions will be eliminated by the closing. Collins v. Gee W. Seattle LLC, 631 F.3d at 1006. Here the starting point would be the number of Defendants’ employees on April 1, 2015. Defendants had 53 employees. (Exhibit 3 Payroll Records Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 14 of 18 Page ID #:1274 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 12 D002129)4. By May 26, 2015, Defendants had ended the employment of all 53 employees. (Exhibit 3 Payroll Records D002149).5 The Ninth Circuit holds that for summary judgment purposes “... unless there is some evidence of imminent departure for reasons other than the shutdown, it is unreasonable to conclude that employees voluntarily departed after receiving notice of the upcoming closure. Collins v. Gee W. Seattle LLC, 631 F.3d at 1006. “Employees' departure because of a business closing, therefore, is generally not voluntary, but a consequence of the shutdown and must be considered a loss of employment when determining whether a plant closure has occurred.” Collins at 1004. “We only hold that, where an employee's reason for departing is because the business is closing, such a departure cannot be termed “voluntary” under the Act. Determining an employee's reason for departing is a factual inquiry better suited for district courts.” Collins at 1006. Mr. Peter Donbavand is a Vice President of Operations of Defendant Catalina Restaurant Group. (Exhibit 1 Donbavand Dep 11:4-14). Mr. Donbavand testified that CRG transferred all of its work, after a 4 Defendants placed the word true on the furthest right hand column on Exhibit 3 - D002130 - D002131 with the payroll run for those employees terminated on April 3, 2015. Exhibit 3 -D002133 - D002134). 5 Defendants did not place the word true in the furthest right-hand column of any of these terminated employees thus indicating that these employees no longer work for Defendants. Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 15 of 18 Page ID #:1275 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 13 brief transition period, from Carlsbad, CA. to San Antonio, Texas. (Exhibit 1 Donbavand Dep 19: 24-25; 20:1-12). Defendants announced the closing of the corporate office. (Exhibit 1 Donbavand Dep 20:6-7). As a result, the employees not terminated had to seek employment elsewhere. Since Defendants eliminated 53 positions this Court should hold that Defendants should have provided a WARN Act notice. 3. Fact Question Remains on Number of Employees Terminated There is a fact dispute regarding the number of employees Defendants terminated in the ninety-day period starting on April 1, 2015. In a Declaration to Support a Motion for Summary Judgment in this Case, Peter Donbavand testifies that he is an officer of Defendant CRG. (Exhibit 5 Donbavand 2017 Dec ¶ 1). Mr. Donbavand further testifies that Defendant CRG laid off 47 employees in April 2015. (Exhibit 5 Donbavand 2017 Dec ¶ 6) Mr. Donbavand further testified that Defendant CRG did not terminate 50 or more employees from its corporate headquarters in the ninety-day period starting April 1, 2015. (Exhibit 5 Donbavand 2017 Dec¶ 7). However, this most recent testimony conflicts with the earlier testimony of Mr. Donbavand. In a declaration by Peter Donbavand to support Defendants’ Motion for Summary Judgment in the case styled: Ross v. Catalina Restaurant Group, Inc., C.A. No. 15-cv-2626-DDP-JPR (C.D. Cal. Dec. 12, 2016), Mr. Donbavand declared he was an officer of Defendant CRG. (Exhibit Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 16 of 18 Page ID #:1276 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 14 4 Donbavand 2016 Dec ¶ 1.) Mr. Donbavand testified that Defendant CRG terminated 46 employees in this version of the facts. Further in the earlier declaration, Mr. Donbavand testified that CRG laid off 28 employees on April 1, 2015.). (Exhibit 4 Donbavand 2016 Dec ¶ 6.) This number is one short of the actual number Defendants laid off in early April 2015. On April 3, 2015, Defendants laid off 29 people not 28. (Exhibit 3 Payroll Record: D002132). Mr. Donbavand testified that CRG terminated 18 people between April 10, 2015 and April 30, 2015. (Exhibit 4 Donbavand 2016 Dec ¶ 6.) Mr. Donbavand is not credible and his inconsistencies on the number of employees laid off by CRG creates a fact question if 50 employees were laid off. The remaining 24 employees were laid off by April 24, 2015, bringing the number of employees laid off to 53. (Exhibit 3 Payroll Record: D002135 - D002136, D002139 - D002140, D002142 - D002143). The employment records showing 53 laid off employees directly conflicts with Mr. Donbavand’s declarations of 46 or 47 employees laid off. A reasonable fact finder may find the employment records more credible than Mr. Donbavand. The genuine dispute of material facts requires this Court to deny Defendant’s Motion and set this case for trial on March 27, 2018. Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 17 of 18 Page ID #:1277 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 15 V. CONCLUSION For the reasons above, Defendants’ motion for summary judgment should be denied. DATED: December 29, 2017 EIGHT & SAND s/ Jeff R. Dingwall Jeff R. Dingwall TRAN LAW FIRM L.L.P. Trang Q. Tran ATTORNEYS FOR PLAINTIFFS Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 18 of 18 Page ID #:1278