Reply Iso Motion To Continue Pending Action By Decedents Successor

Reply

Cal. Super. - 4th Dist.September 19, 2019

A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar No. 217104 KASHIF HAQUE, State Bar No. 218672 JESSICA L. CAMPBELL, State Bar No. 280626 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff Cierra Glazer and Successor in Interest Barbara Brown SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CIERRA GLAZER, individually and on behalf of all others similarly situated, Plaintiff, VS. KUSHAGRAM; KG FINANCIALS GROUP, INC.; and DOES 1 through 20, inclusive, Defendants. Case No. 30-2019-01098699-CU-OE-CXC Assigned for all purposes to Hon. Judge Peter Wilson Dept. CX102 REPLY IN SUPPORT OF MOTION TO CONTINUE PENDING ACTION BY DECEDENT’S SUCCESSOR IN INTEREST Date: January 9, 2020 Time: 2:00 p.m. Dept: CX102 REPLY IN SUPPORT OF MOTION TO CONTINUE PENDING ACTION BY DECEDENT’S SUCCESSOR ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s Opposition fails to provide any substantive reason or cite any case law in the same procedural posture supporting its position that the Motion should be denied. Defendant argues Plaintiff fails to specify enough facts to satisfy CCP 337.32, but never explains why additional facts are necessary or would help the Court decide the Motion. Defendant concedes Plaintiff followed the requirements of CCP 337.32, but claims she should have included more facts. Defendant cites no authority to support this position and it is unclear what facts Defendant even contemplates. Does Defendant dispute that no proceeding is pending for administration of the estate? Does Defendant dispute that the death certificate is real? Apparently not. There is no explanation of what facts are missing, nor any case law to support Defendant’s position. Defendant is also wrong in its conclusory assertion that the action is abated. In fact, there is a presumption in the Code of Civil Procedure that “[e]xcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” CCP § 377.20 (emphasis added). Thus, Defendant tries to trap Plaintiff into proving a negative, but it is actually Defendant’s burden to identify a statute requiring abatement as to the specific causes of action alleged. As noted in the case cited in Plaintiff’s Motion, “[t]he reference to actions that might abate is to those certain causes of action that abate due to the death of a plaintiff, such as in a marital dissolution proceeding when the spouse dies before judgment of marriage dissolution.” Adams v. Superior Court, 196 Cal. App. 4th 71, 79, 126 Cal. Rptr. 3d 186, 192 (2011). Here, Defendant does not even attempt to explain why a wage and hour action would abate due to the death of a plaintiff. Unlike a marital dissolution that would be accomplished through the death, nothing about the death of Plaintiff negates her claim for unpaid wages and penalties earned during her life. See Jovine v. FHP, Inc., 64 Cal. App. 4th 1506, 1508, 76 Cal. Rptr. 2d 322, 325, n.1 (1998) (noting court granted motion to substitute successors-in-interest upon death of the plaintiff in case for breach of implied contract, breach of the covenant of good faith and fair dealing, violation of Labor Code section 1050, defamation, wrongful termination in violation of public policy, intentional infliction of emotional distress, negligent infliction of emotional distress, and -1- REPLY IN SUPPORT OF MOTION TO CONTINUE PENDING ACTION BY DECEDENT’S SUCCESSOR ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interference with contractual relations); Stevenson v. Huntington Mem'l Hosp., No. 2002 WL 453897, at *1, n.1 (Cal. Ct. App. Mar. 26, 2002) (noting court granted motion to substitute successors-in-interest upon death of the plaintiff in case for breach of contract, wrongful termination in violation of public policies prohibiting age and disability discrimination, and breach of the covenant of good faith and fair dealing). Consequently, Defendant’s half-hearted argument on this point fails as well. Finally, Defendant’s Opposition prematurely asks the Court to decide the adequacy of the Estate to serve as class representative - an inquiry not ripe until the class certification motion is filed. Defendant acknowledges the cases cited by Plaintiff allowing the Estate to serve as class representative, but makes no attempt to explain how they are “unpersuasive.” See Opposition at p.4. Additionally, Defendant is wrong in its accusation that Plaintiff fails to cite any binding cases permitting substitution of the estate for a class representative. Plaintiff cites Pepper v. Superior Court, 76 Cal. App. 3d 252, 263, 142 Cal. Rptr. 759 (Ct. App. 1977), which is a published decision from the California Court of Appeal. This case law makes it clear that “the death of ... a designated plaintiff in the class action, required the court, upon motion, to substitute the personal representatives of the deceased as plaintiffs.” (emphasis added). Despite this binding authority, Defendant argues Plaintiff has failed to provide sufficient evidence to support adequacy for class certification, citing decisions where courts considered fully-briefed motions for class certification. See Opposition at p.4 (citing seeking City of San Jose v. Superior Court, 12 Cal. 3d 447, 464, 525 P.2d 701 (1974) (after discovery, finding lack of adequacy because the plaintiff failed to raise claims reasonably expected to be raised by other class members)).! To the extent Defendant disputes whether the Estate has sufficient knowledge of the violations, evidence related to that issue will be available through ! Defendant relies on a case subject to the Private Securities Litigation Reform Act, which is inapplicable here and contains stricter limitations on class actions. See Howard Gunty Profit Sharing Plan v. Superior Court, 88 Cal. App. 4th 572, 574, 105 Cal. Rptr. 2d 896 (2001). The court in Howard Gunty noted non-PSLRA cases routinely allow “plaintiffs to conduct discovery to find a suitable representative.” Id. Accordingly, even if the Court denied this Motion (which would be an error), Defendant’s case law supports the argument that it should grant discovery to find another class representative. £0 REPLY IN SUPPORT OF MOTION TO CONTINUE PENDING ACTION BY DECEDENT’S SUCCESSOR A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discovery. It is not Plaintiff’s burden to prove class certification prior to discovery. Defendant fails to cite a single case that would place such a burden on Plaintiff. Plaintiff respectfully requests that the Court grant the Motion. Dated: January 2, 2020 AEGIS LAW FIRM, PC By /s/ Jessica L.. Campbell Jessica L. Campbell Attorneys for Plaintiff Cierra Glazer and Successor in Interest Barbara Brown £0 REPLY IN SUPPORT OF MOTION TO CONTINUE PENDING ACTION BY DECEDENT’S SUCCESSOR NO C 0 N N N Wn AR W N f k [= 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 January 2, 2020, I served the foregoing document entitled: e REPLY IN SUPPORT OF MOTION TO CONTINUE PENDING ACTION BY DECEDENT’S SUCCESSOR IN INTEREST on all the appearing and/or interested parties in this action by delivering [| the original [X] a true copy thereof on the party(ies) addressed below as follows: Tin K. Westen WESTEN LAW, P.C. 14271 Jeffrey Road, Suite 107 Irvine, CA 92620 tin@westenlawpc.com Attorneys for Defendants: KUSHAGRAM and KG FINANCIALS GROUP, INC [1] (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).) [(] (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).) X (BY ELECTRONIC TRANSMISSION) I 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) 1 delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed. R. Civ. Proc. 3(D)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 January 2, 2020, at Irvine, California. CERTIFICATE OF SERVICE