Darlene Marlowe vs. Genpact Mortgage Services, Inc.

Opposition

Cal. Super. - 4th Dist.February 14, 2018

NO 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 a3 24 23 26 27 28 AEGIS LAW FIRM, PC SAMUEL WONG, State Bar No. 217104 KASHIF HAQUE, State Bar No. 218672 ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 08/31/2018 at 05:14:00 PM Clerk of the Superior Court By Olga Lopez, Deputy Clerk JESSICA L. CAMPBELL, State Bar No. 280626 SHELLY D. SONG, State Bar No. 312036 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff Jeremiah Ryder, individually and on behalf of all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE DARLENE MARLOWE, individually and on behalf of other members of the general public similarly situated; Plaintiff, V. GENPACT MORTGAGE SERVICES, INC., an unknown business entity; and DOES 1 through 100, inclusive, Defendants. JEREMIAH RYDER, individually and on behalf of all others similarly situated, Plaintiff, VS. GENPACT MORTGAGE SERVICES, INC., a California Corporation; and DOES 1 through 20, inclusive, Defendants. Case No.: 30-2018-00974115-CU-OE-CXC [Assigned for all purposes to the Honorable Randall J. Sherman, Dept. CX105] Case No.: 30-2018-00996859-CU-OE-CXC [Assigned for all purposes to the Honorable Glenda Sanders, Dept. CX101] PLAINTIFF JEREMIAH RYDER’S OPPOSITION TO DEFENDANT’S MOTION TO CONSOLIDATE TWO SEPARATE ACTIONS AGAINST DEFENDANT Date: September 14, 2018 Time: 10:00 a.m. Dept.: CX105 Reservation ID: 72861485 Je JEREMIAH RYDER’S OPPOSITION TO MOTION TO CONSOLIDATE ACTIONS AN ~N O N W n 10 11 12 13 14 15 16 iF 18 19 20 21 22 23 24 25 26 27 28 I INTRODUCTION By way of its motion, Defendant seeks to consolidate Plaintiff Ryder’s action with Marlowe v. Genpact Mortgage Services, Inc., Case No. 30-2018-00974115-CU-OE-CXC (the “Marlowe Action”) pending in this Court, despite the fact that there is not enough similarity between the actions to justify consolidation. The Marlowe Action alleges a single cause of action under the Unfair Competition Law and is only entitled to restitution and injunctive relief, while the Ryder Action alleges seven separate causes of action to recover damages and penalties, and will seek to add an eighth cause of action for civil penalties under PAGA. Further, there is no risk of unnecessary costs, delay, or inconsistent rulings as the two Plaintiffs can informally coordinate discovery, and both actions have been deemed related and are pending in the Orange County Superior Court. And most importantly, the actions should not be consolidated as Plaintiff Ryder has demanded and is entitled to a jury trial, while Plaintiff Marlowe is not. Accordingly, the Court should exercise its discretion to deny Defendant’s Motion to Consolidate. II. SUMMARY OF RELEVANT FACTS Plaintiff Ryder filed his Complaint on June 1, 2018 as a putative class action, alleging the following causes of action: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide meal periods; (4) failure to permit rest breaks; (5) failure to provide accurate wage statements; (6) failure to pay all wages due upon separation of employment; and (7) violation of the Unfair Competition Law. Declaration of Samuel A. Wong in Support of Plaintiff>s Opposition to Defendant’s Motion to Consolidate (“Wong Decl.”), § 2, Exhibit A. Plaintiff Ryder submitted a PAGA letter to the Labor and Workforce Development Agency on June 12, 2018, and exhausted his administrative remedies on August 17,2018. Wong Decl. § 3. Plaintiff Ryder will seek to amend his Complaint to add a claim for civil penalties under the PAGA. Id. Plaintiff Ryder’s counsel and Defendant’s counsel have discussed potential consolidation, and Plaintiff’s counsel acknowledged that there may be some overlap of the underlying facts, but asserted that there are substantial differences between the claims and legal theories alleged in the J MEMORANDUM OF POINTS AND AUTHORITIES Oo 0 J 10 11 12 13 14 15 16 17 18 19 20 21 5 23 24 25 26 27 28 two actions. Wong Decl. 4. III. ARGUMENT A. This Court has Discretion to Deny Consolidation of the Actions A motion to consolidate under section 1048 of the Code of Civil Procedure is predicated on the assumption that two or more actions already "involv[e] a common question of law or fact." Even then, consolidation is not mandatory. A motion to consolidate “requests the court to exercise its discretion to consolidate the actions (the court ‘may order a joint hearing or trial of any or all the matters in issue in the actions,"...). Askew v. Askew, 22 Cal. App. 4th 942, 964 (1994) (emphasis in original). As such, “it is possible that actions may be thoroughly ‘related’ in the sense of having common questions of law or fact, and still not be ‘consolidated,’ if the trial court, in the sound exercise of its discretion, chooses not to do so.” Id. “Actions may be consolidated, in the discretion of the court, whenever it can be done without prejudice to a substantial right.” See Civ. Proc. Code section 1048(a); Carpenson v. Najarian, 254 Cal. App. 2d 856, 862 (1967). B. The Actions are Not Similar Enough to Warrant Consolidation Contrary to Defendant’s contentions in its Motion, the claims in the two actions are not “virtually identical” and the overlap is not substantial. Motion at 7:25-26. The Marlowe Action alleges a single cause of action under the Unfair Competition Law, Business and Professions Code section 17200 ef seq. (“UCL”). There are numerous differences between putative class actions and those brought pursuant to the UCL. “A UCL action is an equitable action by means of which a plaintiff may recover money or property obtained from the plaintiff or persons represented by the plaintiff through unfair or unlawful business practices. It is not an all-purpose substitute for a tort or contract action.” Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163, 173 (2000). As such, plaintiffs in UCL actions cannot seek damages; the remedies are “generally limited to injunctive relief and restitution.” Pineda v. Bank of Am., N.A., 50 Cal. 4th 1389, 1401 (2010). Due to this limitation, plaintiffs in UCL actions are not able to recover penalties. See id. at 1401-1402. Moreover, bringing a UCL action in the form of a proposed class action does not expand the plaintiff’s available remedies or “otherwise alter the parties’ underlying substantive rights.” Feitelberg v. Credit Suisse First Bos., LLC, 134 Cal. App. 4th 997, 998 (2005). 5 JEREMIAH RYDER’S OPPOSITION TO MOTION TO CONSOLIDATE ACTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The plaintiff in a proposed class action brought under the UCL must show that each of the alleged violations constitutes an unlawful or unfair business practice, in addition to satisfying typical class certification requirements. See Safeway, Inc. v. Superior Court, 238 Cal. App. 4th 1138, 1154 (2015). Further, a defendant in a UCL action “may assert equitable considerations” against all of the plaintiff's claims. Cortez, 23 Cal. 4th at 181. Finally, there is no right to a jury trial in a UCL action, even if the factual allegations consist of Labor Code violations. See Hodge v. Superior Court, 145 Cal. App. 4th 278, 284 (2006) (“Plaintiffs seek relief from alleged unfair competition, not to enforce the Labor Code.”). Here, although the Marlowe Complaint may contain similar factual allegations regarding class members’ employment with Defendant during a similar time period, the commonalities stop there. For example, the two actions both allege Defendant’s failure to pay wages and provide meal and rest periods, but only the Ryder Complaint contains separate causes of action for these allegations, and only Plaintiff Ryder can seek damages and will be able to seek civil penalties for his claims once he adds a PAGA claim. In contrast, Plaintiff Marlowe’s remedies are limited to restitution for these multiple violations. Further, while both complaints describe Defendant’s failure to provide compliant wage statements and pay all wages due upon separation of employment, only the Ryder Complaint can sustain these allegations as separate causes of action under Labor Code section 226 and Labor Code section 203, and only Plaintiff Ryder can seek penalties for these violations. Plaintiff Marlowe cannot recover penalties or any other monetary relief for Defendant’s alleged conduct. Therefore, while the factual allegations in the two actions may have some similarities, the causes of action and the types of remedies that are available are quite different. Additionally, at the class certification stage, Plaintiff Marlowe will have to show that each violation is an unfair business practice, and Defendant could potentially defeat all of her claims by asserting equitable considerations for the Court to consider. Moreover, Plaintiff Marlowe is not entitled to a jury trial. Accordingly, aside from the factual similarities, nothing else regarding the nature of the actions is similar enough to warrant consolidation. C. There is No Risk of Unnecessary Costs, Delay or Inconsistent Rulings if the Cases Are Not Consolidated 3a JEREMIAH RYDER’S OPPOSITION TO MOTION TO CONSOLIDATE ACTIONS 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant hypothesizes that it would have to endure “repeatedly responding to the same written discovery” and “having to present its witnesses to testify in multiple depositions on the same topics.” Motion at 9:19-20. However, such concerns can be easily addressed by an informal coordination of discovery between the two Plaintiffs to minimize the risk of undue burden or duplicative discovery. Defendant also indicates concern regarding “duplicative and potentially inconsistent rulings on dispositive motions, such as motions for summary judgment” and motions for class certification, and that class members would become confused if the two actions proceeded separately. Motion at 9:21-26. However, the two actions seek different types of relief, contain different causes of action, and necessarily involve different legal theories, so requiring consolidation for these purposes would not be more convenient. In fact, requiring the two Plaintiffs to somehow reconcile their differences and put together combined motions under these circumstances could potentially cause more delay and increase costs for the Plaintiffs due to the extra effort and resources expended. There is also no risk of inconsistent rulings, since the cases have been deemed related, and are both pending in the Orange County Superior Court. Lastly, any potential confusion by class members can be easily addressed by an explanation in any notice given to the class. Further, consolidation for purposes of trial should not be permitted since it would substantially prejudice Plaintiff Ryder’s case, since he has demanded a jury trial, and Plaintiff Marlowe is not entitled to a jury trial. See Civ. Proc. Code section 1048(a) (“The court. ..to avoid prejudice...may order a separate trial of any cause of action...preserving the right of trial by jury...). Plaintiff Ryder should not be forced to give up this important right or face unnecessary delays in his jury trial. This reason alone justifies permitting the two actions to proceed separately. 1 1 1 1 1 1 lf JEREMIAH RYDER’S OPPOSITION TO MOTION TO CONSOLIDATE ACTIONS OO 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION Based on the foregoing, Plaintiff Ryder respectfully requests that the Court deny Defendant’s Motion. Dated: August 31, 2018 AEGIS LAW FIRM, PC By 75 vc Shefty D. Song Attorneys for Plaintiff JEREMIAH RYDER 5. JEREMIAH RYDER’S OPPOSITION TO MOTION TO CONSOLIDATE ACTIONS wn Bs W N S NO c o 0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 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 August 31, 2018, IT served the foregoing document entitled PLAINTIFF JEREMIAH RYDER’S OPPOSITION TO DEFENDANT’S MOTION TO CONSOLIDATE TWO SEPARATE ACTIONS AGAINST DEFENDANT 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: John A. Vanhook Edwin Aiwazain MeGLIRBWORIDS LLE wr LAWYERS FOR JUSTICE PC 1800 Century Park East, 8% Floor 410 West Arden Avenue, Suite 203 [Los Angeles, CA 90067 jvanhook@mcguierwoods.com Attorneys for Defendant: Genpact Mortgage Services, Inc. [] Glendale, CA 91203 edwin@Ifjpc.com Attorney for Plaintiff: Darlene Marlowe (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(¢).) (BY OVERNIGHT MAIL) [ 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) | caused said document(s) to be served via electronic transmission via the above listed email addresses 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. 5(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 August 31, 2018, at Irvine, California. CERTIFICATE OF SERVICE