Jayme Fiscus vs. Floyd'S 99 Growth Vi, LLC

Motion to Consolidate Cases

Cal. Super. - 4th Dist.October 21, 2016

O e 9 N N n n RA R W N = N N N N N O N N N O N m E o m m m e m e m e d p m p m p m p m « © ~ ~ N N W n B R W N R m © D 0 N S N R W = D AEGIS LAW FIRM, PC SAMUEL WONG,State Bar No. 217104 KASHIF HAQUE,State Bar No. 218672 JESSICA L. CAMPBELL, State Bar No. 280626 ALIS. CARLSEN,State Bar No. 289964 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff Jayme Fiscus, individually and on behalf of all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JAYME FISCUS,individually and on behalfof all others similarly situated, Plaintiff, VS. FLOYD’S 99 GROWTH VI, LLC, a California limited liability company; FLOYD'S 99-CALIFORNIA LLC, a California limited liability company; and DOES1 through 20 inclusive, Defendants. FREDDY GEIGER, an individual, on behalf ofhimself and on behalf of all persons similarly situated, Plaintiff, Vs. FLOYD’s 99-CALIFORNIA LLC, a Corporation; and Does 1 through 50, Inclusive, Defendants. CASE NO. 30-2016-00882967-CU-OE-CXE [Related to CASE NO: 30-2016-00874943-CU- OE-CXC] [Assignedfor allpurposes to Judge Thierry Patrick Colaw, Dept CX105] JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND REQUEST FOR STAY; MEMORANDUM OF POINTS AND AUTHORITIES Date: April 7, 2017 Time: 10:30 a.m. Dept.: CX 105 -1- JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS O 0 0 N Y n t B R A W N N O N N N m m m t e m e m e m e m e d e d e d 3 8 3 R U B NB RE RE 8 3S x» 3 a & = 6 0 ~~ o TO THE COURT, AND TO ALL PARTIES AND THEIR COUNSEL OF RECORD: YOU ARE HEREBY NOTIFIED THAT on April 7, 2017 at 10:30 am., or as soon thereafter as counsel may be heard before the Honorable Thierry Patrick Colaw, Dept. CX105 of the Orange County Superior Court, located at 700 Civic Center Driver West, Santa Ana, CA 92701, Jayme Fiscus will, and hereby does, move to consolidate the following related Orange County Superior Court cases: 1. Jayme Fiscus v. Floyd’s 99 Growth VI, LLC,et al., OCSC Case No. 30-2016- 00882967-CU-OE-CXC Plaintiff, Jayme Fiscus, represented by Aegis Law Firm, PC Defendant, Floyd’s 99 Growth VI, LLC, represented by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Defendant, Floyds’s 99-California LLC, represented by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | 2. Freddy Geiger v. Floyd’s 99-California LLC, OSCS Case No: 30-2016- 00874943-CU-OE-CXC Plaintiff Freddy Geiger, represented by Blumenthal, Nordrehaug & Bhowmik Defendant, Floyd’s 99-Calfiornia LLC, represented by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Plaintiff Fiscus also requests an order staying these actions pending the hearing on the Motion to Consolidate. The Motion will be made pursuant to Code of Civil Procedure § 1048(a) on the grounds that consolidation will avoid repetitive trials of the same common issues, thereby avoiding unnecessary costs and delays to the court and to the parties, as well as the substantial risk of inconsistent adjudications. 1 1 1 1 2- JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS N N n h l x W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Motion will be based upon the Notice of Motion, the supporting Memorandum of Points and Authorities, the First Amended Complaint in Fiscus v. Floyd’s 99 Growth VI. LLC, et al., the Complaint in Geiger v. Floyds 99-California LLC, the Declaration of Ali S. Carlsen, the files and records in these actions, and upon any such further evidence and argument as the Court may considerat the hearing ofthis Motion. Dated: February 8, 2017 AEGISurPC[ By Ali S. Carlsen Attorneys for PlaintiffJAYME FISCUS Ns = NS 3. JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS S N N O 0 N N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IL INTRODUCTION PlaintiffJayme Fiscus (“PlaintiffFiscus™) seeks an order consolidating two putative class and representative actions pending in this Court against Defendants Floyd’s 99 Growth VI, LLC and Floyd’s 99-California LLC (collectively “Defendants™). Both actions are putative class and representative actions brought on behalf of all current and former non-exempt employees employed by Defendants in the State of California that allege that Defendants violated various provisions ofthe California Labor Code, violation of Business and Professions Code §§ 17200, et seq. and to seek to enforce Labor Code § 2698 et seq. (“PAGA”). The case ofFiscus v. Floyd's 99 VI Growth, LLC,etal. is a complex matter in this Court, Case No. 30-2016-00882967-CU-OE-CXC, and was filed on October 21, 2016 (the “Fiscus Action”). The case of Geiger v. Floyd's 99 -California LLC, is also a complex matter in this Court, Case No. 30-2016-00874943, and wasfiled on September 14, 2016 (the “Geiger Action”) (collectively with the Fiscus Action, “the Actions”). | The Actions should be consolidated for all purposes because they allege near identical claims on behalf of Defendants’ current and former non-exempt employees. Specifically, as detailed herein, consolidation would promote the ends ofjustice because both actions arise from nearly identical factual circumstances and present nearly identical questions of law. Moreover, both trials will involve identical witnesses and testimony. Additionally, Plaintiff would suffer undue prejudice if forced to pursue separate trials because of the great potential for inconsistent results, appeals, and remands for further trial(s) despite the same factual scenarios underlying both actions. Further, all ofthe parties and the Court will be severely burdened by having to incur duplicative expenses in the event that the Actions proceed to separate trials. Lastly, each Action covers a few unique issues that would ensure the putative class members are adequately represented in one coordinated class action. Plaintiff Fiscus can reach an additional defendant, and seeks claims forfailure to pay minimum wages,failure to provide meal periods, and failure to provide rest breaks, while Plaintiff Geiger can include class members during a slightly longer time period. Bringing these actions together will protect the class -1- MEMORANDUM OF POINTS AND AUTHORITIES o N N O 0 N N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 members and save resources for the parties and the Court. As such, the cases should be consolidated for all purposes. IL. PROCEDURAL HISTORY ; A. The Fiscus Action PlaintiffJayme Fiscusfiled her Class Action Complaint in Orange County Superior Court on October 21, 2016,alleging failure to pay minimum and overtime wages, failure to provide meal and rest breaks, failure to reimburse business expenses, failure to pay all earned wages at termination,failure to provide accurate wage statements, and unfair.competition. See Declaration ofAli S. Carlsen in Support ofPetition for Consolidation (“Carlsen Decl.”) at § 2, Ex. A. Plaintiff Fiscus’ minimum wage claim is premised on Defendant’s failure to pay for time spent attending mandatory meetings and time spent traveling to these meetings. On December 27, 2016, Plaintiff Fiscus filed her First Amended Complaint adding claims under the California Private Attorneys General Act of2004 (“PAGA”). Carlsen Decl. at § 3, Ex. B (“Fiscus FAC”). B. The Geiger Action Plaintiff Geiger filed his Class Action Complaint in Orange County Superior Court on September 14, 2016,alleging failure to pay overtime wages, failure to pay all earned wages at termination, failure to provide accurate itemized wage statements, and unfair competition. Carlsen Decl. at §4, Ex. C. On January 5, 2017, Plaintiff Geiger filed his First Amended Complaint adding PAGA claims and failure to reimburse business expenses. Carlsen Decl. at § 5, Ex. D (“Geiger FAC”). III. LEGAL ARGUMENT A. It is in the Court’s Inherent Power to Stay these Actions Until the Motion for Consolidation is Decided Concurrently with this Motion, Plaintiff Fiscus requests an order staying both Actions pending a ruling on the Motion for Consolidation. A motion to stay order is within the Courts inherent authority and further codified by Rule of Court 3,515(f) which sets forth the standard for such a motion for stay: In ruling on a motion for a stay order, the assigned judge must determine whether the stay will promote the ends ofjustice, considering the imminence of any trial or other 2- JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS N o 0 1 N N W h R k W N B N N N N O N N N N e m e m m m e m e m e m e m e m W W a N W n R W N = D D 0 N N B R E W N = , proceeding that might materially affect the status of the action to be stayed, and whether a finaljudgment in that action would have a res judicata or collateral estoppel effect with regard to any common issue of the included action. Here, the Actions should be stayed to avoid unnecessary, duplicative use of judicial resources, and to avoid duplication of litigation costs and efforts by the parties. There is no trial date in either case that would be delayed by such a stay. Given that the only upcoming event on the Fiscus docket is another case management conference, scheduled for May 8, 2017, there is no other imminent proceeding that might materially affect the status of either Action. Applying the rule quoted above, the potential for judgment on a single common issue is sufficient to merit a stay. As such, a stay will ensure that the Courts does not issue class certification, settlement approval, or final judgment orders, which could have a res judicata or collateral estoppel effect on any of the multiple common class-wide issues, before consolidation is decided. Thus, to avoid incurring unnecessary expenses and wasting judicial resources, and to protect the interests of the putative class members in each of the Actions, Plaintiff Fiscus respectfully requests the Court stay the Actions until the Motion to Consolidate is heard. B. The Court Has The Authority To Consolidate Matters of Common Law Or Fact. Code of Civil Procedure section 1048(a) allows the Court the discretion to consolidate actions “involving a common question of law or fact” in order to “avoid unnecessary costs or delay.” Where two or more actions present the same overlapping issues,it is proper to consolidate and dispose ofthem in a single proceeding. Spector v. Superior Court, 55 Cal. 2d 839, 844 (1961 ). Given that both actions are nearly identical regarding the claims pursued and the parties involved, complete consolidation is appropriate. C. The Actions Before the Court Involve Common Questions ofLaw and Fact California Code of Civil Procedure 1048(a) states “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay” 1! 3- JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS H W N O o 0 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The chart below highlights the significant similarities between the Fiscus and Geiger Actions, notably the substantial overlapping causes of action: Causes of Action Fiscus Geiger Failure to Pay Minimum Wages V Failure to Pay Overtime Wages Failure to Provide Meal Periods Failure to Permit Rest Breaks Failure to Pay all Wages Due Upon Separation Failure to Provide Accurate Itemized Wage Statements Failure to Reimburse all Business Expenses Violation of Business and Professions Code §§ 17200, et seq. L o 2 L l 2 < 2 L l < 4 A Enforcement ofLabor Code §§ y \2698 et. seq., (PAGA) Additionally, although the class definitions extend to different dates based on the respective filing dates of the Actions, they cover the same group of employees; classdefinition: All current and former non-exempt employees employed by Defendants in the State of California within four years prior to the filingofthis action to the present and continuing. Fiscus FAC at J 19. Geiger class definition: [All individuals who are or previously were employed by DEFENDANTin California and classified as non-exempt employees...at any time during the period beginning four (4) years prior to the filing of the original Complaint and ending on the date as determined by the Court... Geiger FAC 21. Moreover, plaintiffs in both cases allege in their respective complaints many of the same common questions of law and fact including but not limited to: e “Whether Defendants required Plaintiff and class members to work over 8 hoursper day, over twelve (12) hours per day and/or over forty (40) hours per week and failed to pay them overtime compensation at the proper rate” Fiscus FAC 9 23; see Geiger FAC { 37 4- JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS w D 10 11 12 13 14 15 16 17 18 19 20 21 2 23 2 25 26 27 28 © © eo “Whether Defendants failed to timely pay all wages due to Plaintiff and Subclass members upon termination or within seventy-two (72) hours of resignation” Fiscus FAC § 23; see Geiger FAC 190 e “Whether Defendants failed to provide accurate itemized wage statements to Plaintiff and class members” Fiscus FAC 9 23; see Geiger FAC J 37 oe “Whether Defendants engaged in unfair business practices in violation of Business and Professions Code §§ 17200, ef seq” Fiscus FAC q 23; see Geiger FAC 9 37 e “Whether Defendants required Plaintiff an class members to purchase equipment necessary for the job and failed to reimburse Plaintiff and class members for such expenses” et seq” Fiscus FAC § 23; see Geiger FAC 9 37 Because both Actions seek to certify almost identical claims for an overlapping class of| employees,ifthe Actions are not consolidated, the courts will separately and needlessly adjudicate the same facts and circumstances in each matter which would be against the interests ofjudicial efficiency and burden Plaintiff Fiscus and Plaintiff Geiger with the unnecessary costs and lengthy periods oftime it would take for them to pursue their causes of actions separately. In regards to the defendants, both Actions specifically name Floyd’s 99-California LLC. See Fiscus FAC and Geiger FAC. The Fiscus Action also names Floyd’s Growth VI, LLC. Although the Geiger Action is the first-filed case, it is still in the early stages of class action litigation - no class certification motion has been filed, and no trial date is set. Moreover, while Defendant Floyd's 99-California LLC has appeared in the Geiger Action, neither defendant has appeared in the Fiscus Action. Thus, neither case will be prejudiced if consolidated, but instead, the parties and the Court would benefit from saving valuable time and resources. D. Consolidation of the Actions Will Avoid Unnecessary Costs or Delay Ithas been established that the Actions before the Court share a significant overlap in claims amongst nearly identical parties. Consolidation would allow all parties involved to litigate the issue in one judicial proceeding thereby eliminating the risk ofinconsistent rulings and saving all parties involved the time, energy and costs of litigating what is essentially the same cause of action. The scope of discovery and law and motion in the Actions will be substantially similar or identical, and the Court and parties will benefit from consolidation by avoiding this duplication. -5- JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS O o 0 0 S Y W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B W M Furthermore, consolidation will likely facilitate settlement discussions as the parties will be more inclined to resolve the Actions globally if they consolidated, thereby opening the prospect of a quicker resolution of the matter for all parties involved. Therefore, the Court should grant petitioners request for a Consolidation of the Actions currently before the Court. IV. CONCLUSION Based on the foregoing, Plaintiff Fiscus respectfully requests that the Actions are stayed pending the hearing on the Motion to Consolidate. Plaintiff Fiscus further requests that the Court issue an order consolidating the Actions for all purposes in the Superior Court of California for the County of Orange, where the Actions are currently pending. Dated: February 8, 2017 AEGISLAWFIRM, PC ow LC-- ~~ Ali S. Carlsen Attorneys for PlaintiffJAYME FISCUS -6- JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS o O 0 N N n t RA R W N = N O D N D N D N N N N N N e m m m e m m m e m p m p e w e d p k m e d c o 1 O N B R W N e e O O N N N R W N e e o O CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On February 8, 2017, I served the foregoing documententitled: * JAYME FISCUS’ NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND REQUEST FOR STAY; MEMORANDUM OF POINTS AND AUTHORITIES on all the appearing and/or interested parties in this action by placing [| the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Spencer C. Skeen Norman B. Blumenthal Tim L. Johnson Kyle R. Nordrehaug : Aparajit Bhowmik Ogletree Deakins Nash Smoak & Stewart, PC Blumenthal Nordrehaug & Bhowmik 4370 La Jolla Village Drive, Suite 990 7255 Calle Clara San Diego, CA 92122 La Jolla, CA 92037 Attorneysfor Defendant: Floyd's 99 Growth VI, 4p, Plaintiff Freddy Ge; LLC; Floyd's 99 - California LLC orneysfor Plaintiff: Freddy Geiger X (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(c).) OJ (BY OVERNIGHT MAIL) I am personally and readily familiar with the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(c).) [] (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission to the addressee(s) listed above on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) [] (BY PERSONAL SERVICE) I delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed R. Civ. Proc. S(b)(2)(A).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 8, 2017,at Irvine, California. Kathyan/Alvarez~~ CERTIFICATE OF SERVICE