Ronald Ross v. Catalina Restaurant Group Inc et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to Operative Complaint Motion for Summary Judgment

C.D. Cal.December 12, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 15-cv-2626-DDP-JPR DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Spencer C. Skeen CA Bar No. 182216 spencer.skeen@ogletreedeakins.com Jennifer L. Santa Maria CA Bar No. 225875 jennifer.santamaria@ogletreedeakins.com Tim L. Johnson CA Bar No. 265794 tim.johnson@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, CA 92122 Telephone: 858.652.3100 Facsimile: 858.652.3101 Attorneys for Defendants CATALINA RESTAURANT GROUP, INC., FOOD MANAGEMENT PARTNERS, INC., and ALAMO CRG, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION RONALD ROSS Plaintiff(s), v. CATALINA RESTAURANT GROUP, INC., et al. Defendant(s). Case No. 15-cv-2626-DDP-JPR [Consolidated with Barnett v. Food Management Partners, Inc., No. 2:15-cv- 3140; and Hodge v. Food Management Partners, Inc., No. 5:15-cv-0996] DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Date: January 9, 2017 Time: 10:00 a.m. Place: Courtroom 9C, Ninth Floor Judge: Honorable Dean D. Pregerson Complaint Filed: April 8, 2015 Trial Date: None Set Case 2:15-cv-02626-DDP-JPR Document 53 Filed 12/12/16 Page 1 of 4 Page ID #:352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. 15-cv-2626-DDP-JPR DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on January 9, 2017, at 10:00 am., or as soon thereafter as the matter may be heard in Courtroom 9C, Ninth Floor of the above- entitled Court, located at 350 West 1st Street, Los Angeles, California 90012, Defendants will move this Court, in accordance with Federal Rule of Civil Procedure (“FRCP”) 56, for an order granting summary judgment on all claims filed by Plaintiffs Gene Watts, Tracy Salazar, Joelle Kennedy, Gary Bowels, Violeta Ramirez, and Jose Sandoval (“Plaintiffs”).1 The undisputed facts establish that the federal Worker Adjustment and Retraining Notification Act (“federal WARN Act”) and the California Worker Adjustment and Retraining Notification Act (“California WARN Act”) did not apply to the layoffs at issue in this case. More specifically, Defendants were not required to provide advance notice of the layoffs under federal or California law. Defendants are therefore entitled to summary judgment. This motion will be based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the Declaration of Bill Runyon, the Declaration of Peter Donbavand and the supporting evidence attached thereto, the Statement of Uncontroverted Facts and Conclusions of law, the pleadings and papers on file herein, and any other evidence and argument as may be presented at the hearing on this motion. /// /// /// /// 1 Plaintiffs Phoebe Patterson, Kanani Fast, Rebekkah Salazar, Ashley Watts, Aisha Rogers, Aaron Kakavand, Victoria Andrade, Gerardo Chavez, Christi Harrell, John Manley, Roseann Barnett, Maria Ramirez, and Andrew Hodge signed arbitration agreements, and thus their claims are not properly before the Court. Defendants intend to file petitions to compel these Plaintiffs to binding arbitration. Case 2:15-cv-02626-DDP-JPR Document 53 Filed 12/12/16 Page 2 of 4 Page ID #:353 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 15-cv-2626-DDP-JPR DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT This motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on November 29, 2016. DATED: December 12, 2016 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Spencer C. Skeen Spencer C. Skeen Jennifer L. Santa Maria Tim L. Johnson Attorneys for Defendants CATALINA RESTAURANT GROUP, INC., FOOD MANAGEMENT PARTNERS, INC., and ALAMO CRG, LLC Case 2:15-cv-02626-DDP-JPR Document 53 Filed 12/12/16 Page 3 of 4 Page ID #:354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. 15-cv-2626-DDP-JPR DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that on December 12, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the Notice of Electronic Filing. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on December 12, 2016. By: /s/ Spencer C. Skeen Spencer C. Skeen 27824488.1 Case 2:15-cv-02626-DDP-JPR Document 53 Filed 12/12/16 Page 4 of 4 Page ID #:355 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Spencer C. Skeen CA Bar No. 182216 spencer.skeen@ogletreedeakins.com Jennifer L. Santa Maria CA Bar No. 225875 jennifer.santamaria@ogletreedeakins.com Tim L. Johnson CA Bar No. 265794 tim.johnson@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, CA 92122 Telephone: 858.652.3100 Facsimile: 858.652.3101 Attorneys for Defendants CATALINA RESTAURANT GROUP, INC., FOOD MANAGEMENT PARTNERS, INC., and ALAMO CRG, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION RONALD ROSS Plaintiff(s), v. CATALINA RESTAURANT GROUP, INC., et al. Defendant(s). Case No. 15-cv-2626-DDP-JPR [Consolidated with Barnett v. Food Management Partners, Inc., No. 2:15-cv- 3140; and Hodge v. Food Management Partners, Inc., No. 5:15-cv-0996] MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Date: January 9, 2017 Time: 10:00 a.m. Place: Courtroom 9C, Ninth Floor Judge: Honorable Dean D. Pregerson Complaint Filed: April 8, 2015 Trial Date: None Set Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 1 of 16 Page ID #:356 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................1 II. UNDISPUTED MATERIAL FACTS..............................................................1 A. Proximity and Operation of Units ..........................................................1 B. Support for Units ....................................................................................3 C. Unit Closures and Reduction-in-Force...................................................4 III. APPLICABLE STANDARD OF REVIEW ....................................................4 IV. LEGAL ARGUMENTS ...................................................................................5 A. CRG Was Not Required to Provide Notice to Plaintiffs Under the Federal Warn Act ..................................................................5 1. Plaintiffs Cannot Aggregate Multiple Sites Into a “Single Site” to Meet the 50-Employee Threshold .....................6 B. CRG Was Not Required to Provide Notice to Plaintiffs Under the California WARN Act.........................................................10 V. CONCLUSION...............................................................................................11 Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 2 of 16 Page ID #:357 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT TABLE OF AUTHORITIES Federal Cases Page(s) Anderson v. Liberty Lobby, 477 U.S. 242 (1986) ................................................................................................ 4 Bader v. Northern Line Layers, Inc., 503 F.3d 813 (9th Cir. 2007) ................................................................................... 5 Field v. Am. Mortgage Exp. Corp., 2011 WL 3354344 (N.D. Cal. 2011)....................................................................... 4 Frymire v. Ampex Corp., 61 F.3d 757 (10th Cir. 1995) ............................................................................... 5, 6 Int’l Union, United Mine Workers v. Jim Walter Res., Inc., 6 F.3d 722 (11th Cir. 1993) ................................................................................. 8, 9 LVRC Holdings, LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009) ................................................................................. 4 Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277 (8th Cir. 1996) ...........................................................................6, 7, 9 Sides v. Macon Cty. Greyhound Park, Inc., 725 F.3d 1276 (11th Cir. 2013) ............................................................................... 6 Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019 (9th Cir. 2008) ................................................................................. 4 Viator v. Delchamps Inc., 109 F.3d 1124 (5th Cir. 1997) .........................................................................7, 8, 9 Federal Statutes 29 U.S.C. § 2101(a)(5) ................................................................................................. 5 29 U.S.C. § 2102........................................................................................................... 5 State Statutes Cal. Lab. Code § 1400 ................................................................................................ 10 Cal. Labor Code § 1401(a) ......................................................................................... 10 Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 3 of 16 Page ID #:358 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Cal. Labor Code §§ 1400-08 ...................................................................................... 11 Rules Fed. R. Civ. Pro. 56(a) .................................................................................................. 4 Regulations 20 C.F.R. 639.3(i)(1) .............................................................................................. 6, 11 54 Fed. Reg. 16,042, 47, 49-50..................................................................................... 6 Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 4 of 16 Page ID #:359 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This is a classic case of putting the cart before the horse. Plaintiffs allege Catalina Restaurant Group, Inc. (“CRG”) violated WARN requirements because it failed to provide advanced notice of a reduction-in-force that occurred in April 2015.1 But WARN requirements do not apply to every reduction-in-force. A threshold number of employees must be affected by a reduction-in-force before WARN requirements are triggered. The federal WARN Act applies to a reduction- in-force that affects at least 50 full-time employees at a single site. The California WARN Act applies to a reduction-in-force that affects 50 or more employees at a location which employed over 75 employees in the year preceding the layoffs. Plaintiffs cannot show CRG’s April 2015 reduction-in-force affected the requisite number of employees to trigger WARN notice under federal or California law. Therefore, summary judgment is appropriate. II. UNDISPUTED MATERIAL FACTS CRG owns and operates restaurants (known as “units”) in California and Arizona under its Coco’s and Carrows brands. (UF No. 1.) In 2015, CRG had approximately 158 units in California, Nevada, and Arizona. (UF No. 2.) CRG also had a corporate headquarter in Carlsbad, California that provided administrative support to its units (“Corporate HQ”). (UF No. 3.) A. Proximity and Operation of Units CRG’s units operating in 2015 were geographically separated miles apart from each other and the Corporate HQ. (UF No. 4.) Each unit was strategically placed to serve its local market. (UF No. 5.) The units did not share facilities and each had its 1 Plaintiffs claim Food Management Partners, Inc. (“FMP”) and Alamo CRG, LLC (“Alamo”) are jointly liable for CRG’s alleged WARN violations. But the relationship between the entities and any potential joint liability are immaterial for purposes of this motion. If CRG did not violate federal or California WARN requirements, neither did FMP or Alamo. (See Decl. of Donbavand ¶ 1.) Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 5 of 16 Page ID #:360 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT own kitchen, dining area, and parking lot. (UF No. 6.) The units also operated independently of one another. (UF No. 7.) Each unit had its own managers (called restaurant managers or team leaders) responsible for overseeing and managing the unit (“Restaurant Managers”). (UF No. 8.) Among other duties, the Restaurant Managers managed staff, ordered inventory and equipment, maintained the budget, and forecasted the needs of the unit. (UF No. 9.) Restaurant Managers were also responsible for interviewing, hiring, disciplining, and discharging employees. (UF No. 10.) Each unit handled local marketing and business promotions. (UF No. 11.) Each unit managed its own labor, inventory, and equipment budgets. (UF No. 12.) CRG separately tracked profits and losses for each unit. (UF No. 13.) Each unit and its Restaurant Managers were evaluated based on the unit’s individual performance. (UF No. 14.) CRG’s units were also treated and regulated separately by California health and food agencies. (UF No. 15.) They were also issued separate liquor licenses by the State of California. (UF No. 16.) Given that the units operated on their own, they did not share staff, inventory, or equipment. (UF No. 17.) In emergency situations, one unit could purchase labor or inventory from another. (UF No. 18.) However, the purchase of labor or inventory was a last-resort and rarely happened. (UF No. 19.) With regard to labor, if a unit was understaffed, the Restaurant Managers would either make-do without additional staff or look to their own team members for additional labor. (UF No. 20.) CRG emphasized cross-training for employees so that they could fill-in for other employees when needed. (UF No. 21.) The Restaurant Managers looked to team members from their own unit to fill-in because those employees were familiar with the unit’s particularities, processes, and procedures. (UF No. 22.) If the unit absolutely needed additional staffing, and no one from the unit’s team was available, only then would Restaurant Managers seek labor from another unit and only if Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 6 of 16 Page ID #:361 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT another unit was within close proximity. (UF No. 23.) As a result, less than two percent of total labor performed at CRG’s units was purchased in 2015. (UF No. 24.) The procedure for purchasing inventory from another unit was similar to the procedure for purchasing labor. (UF No. 25.) The Restaurant Managers would first try to survive without the missing supplies until the next delivery cycle (inventory was ordered bi-weekly). (UF No. 26.) If the Restaurant Managers determined the unit could not wait until the next delivery cycle, they could go to a local vendor and purchase necessary items. (UF No. 27.) The only time the Restaurant Managers would seek to purchase items from another unit is if the items were otherwise unavailable and only if another unit was within close proximity. (UF No. 28.) Where labor or inventory was purchased, the costs would come out of the budget from the purchasing unit. (UF No. 29.) Each unit could decline requests from another unit to purchase labor or inventory. (UF No. 30.) B. Support for Units In 2015, CRG provided support to its units through its Corporate HQ. (UF No. 31.) The Corporate HQ provided services to help units with administrative tasks such as accounting, information technologies, human resources, and marketing. (UF No. 32.) The Corporate HQ did not share employees, inventory, or equipment with the units. (UF No. 33.) Similarly, the Corporate HQ did not employ restaurant-specific employees such as hosts, servers, or cooks. (UF No. 34.) CRG’s upper-level executives were available as a resource to the Restaurant Managers. (UF No. 35.) The executives included the Vice President of Operations, Regional Directors of Operations, Area Directors of Operations, and Area Managers (collectively “Corporate Managers”). (UF No. 36.) The Corporate Managers were assigned to assist multiple units. (UF No. 37.) They provided advice, training, and support based on a given unit’s requests or needs. (UF No. 38.) But they were not assigned to work at any specific unit and they were not responsible for the day-to- day management of operations or personnel at the units. (UF No. 39.) Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 7 of 16 Page ID #:362 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT C. Unit Closures and Reduction-in-Force In April 2015, CRG closed approximately 75 of its units in California, Nevada, and Arizona. (UF No. 40.) At the time of the closures, the individual units employed between 9 and 41 employees. (UF No. 41.) In the 12 months prior to the closings, none of the units employed over 75 employees. (UF No. 42.) In April 2015, CRG also laid off 46 employees from its Corporate HQ but continued to operate. (UF No. 43.) CRG did not layoff more than 50 people in the aggregate at the Corporate HQ in the 90 days before or the 90 days after April 2015. (UF No. 44.) III. APPLICABLE STANDARD OF REVIEW Summary judgment should be granted in whole or in part where “there is no genuine dispute as to any material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). “Where the plaintiff has the ultimate burden of proof, the defendant may prevail on a motion for summary judgment simply by pointing to the plaintiff’s failure to make a showing sufficient to establish the existence of an element essential to the plaintiff’s case.” Field v. Am. Mortgage Exp. Corp., 2011 WL 3354344, at *3 (N.D. Cal. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)) (internal quotations omitted). To avoid summary judgment, the non-moving party must produce “evidence that is significantly probative or more than ‘merely colorable’ that a genuine issue of material fact exists for trial.” LVRC Holdings, LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009). “[B]are allegations without evidentiary support” or a “scintilla of evidence” cannot create a genuine dispute of material fact. Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1033, n.14 (9th Cir. 2008); Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). /// /// Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 8 of 16 Page ID #:363 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IV. LEGAL ARGUMENTS A. CRG Was Not Required to Provide Notice to Plaintiffs Under the Federal Warn Act The federal WARN Act requires covered employers to provide notice to “affected employees” of a “plant closing” or a “mass layoff.” 29 U.S.C. § 2102(a); Bader v. Northern Line Layers, Inc., 503 F.3d 813, 817 (9th Cir. 2007) (“Bader”). Put another way, “[t]o constitute a WARN violation, an employer must have ordered a plant closing or mass layoff without providing each employee, either individually or through her representatives, with sixty-days advance notice.” Frymire v. Ampex Corp., 61 F.3d 757, 764 (10th Cir. 1995) (“Frymire”) (citing 29 U.S.C. § 2102). The federal WARN Act defines “affected employees” as “employees who may reasonably be expected to experience an employment loss as a consequence of a proposed plant closing or mass layoff by their employer.” 29 U.S.C. § 2101(a)(5). A “plant closing” is “the loss of employment for at least 50 full-time employees at a single site of employment during any 30–day period, as a result of the permanent or temporary shutdown of a single site of employment.” Bader, 503 F.3d at 817 (citing 29 U.S.C. § 2101(a)(2)). A “mass layoff” is a “reduction-in-force that does not result from a plant closing but includes the loss of at least 50 full-time employees at a single site and at least 33 percent of the total workforce at that site.” Id. (citing 29 U.S.C. § 2101(a)(3)). A reduction-in-force of at least 500 full time employees from a single site, which is not the result of a plant closing is also considered a “mass layoff.” 29 U.S.C. § 2102(a)(3)(A) & (B)(ii). Additionally, the federal WARN Act provides that a number of smaller layoffs over a 90-day period can be aggregated to constitute a plant closing or mass layoff unless “the employment losses are the result of separate and distinct actions and causes and are not an attempt by the employer to evade the requirements of this chapter.” 29 U.S.C. § 2102(d). Significantly, the number of employees affected by a layoff cannot be aggregated with a shutdown of an employment site to qualify as either a “plant closing” or “mass layoff” even if the Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 9 of 16 Page ID #:364 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT two events occur within the prescribed time frames. See Sides v. Macon Cty. Greyhound Park, Inc., 725 F.3d 1276, 1282-83 (11th Cir. 2013). CRG did not have to provide notice under the federal WARN Act because it did not order a “plant closing” or a “mass layoff.” CRG did not layoff enough employees at any unit it shut down to constitute a “plant closing”. Each unit only had 9 to 41 “affected employees.” (UF No. 41.) Similarly, CRG did not layoff a sufficient number of employees from its Corporate HQ to constitute a “mass layoff.” In April 2015, CRG laid off 46 employees. (UF No. 43.) CRG did not layoff more than 50 people in the aggregate at the Corporate HQ in the 90 days before or the 90 days after April 2015. (UF No. 44.) Accordingly, none of the employment losses met the 50-employee threshold to trigger the federal WARN Act’s notice requirements. 1. Plaintiffs Cannot Aggregate Multiple Sites Into a “Single Site” to Meet the 50-Employee Threshold “A single site of employment can refer to either a single location or a group of contiguous locations.” 20 C.F.R. 639.3(i)(1). “[W]orkers who suffer an employment loss at another single site of employment are not counted in determining whether plant closing or mass layoff coverage thresholds are met.” 54 Fed. Reg. 16,042, 16,047. “As a general rule, a geographic connection or proximity is required to define ‘single site of employment.’” Id. at 16,049–50. Geographically separate locations are presumed to be multiple, not single sites. See Frymire, 61 F.3d at 766. Buildings that are several blocks or miles apart are “geographically separate” sites. 9A Ind. Empl. Rights Man. (BNA) 595:954 (1988); Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir. 1996). The only time when geographically separate locations are a single site is where they have an “inextricable operational connection.” 54 Fed. Reg. 16,042, 16,049–50. But “this exception is intended to be read narrowly to cover those rare situations in which two separate buildings share staff, equipment and functions.” Id. (emphasis added). Courts have examined the Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 10 of 16 Page ID #:365 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT applicability of this “limited exception” in cases where, as here, the plaintiffs attempted to aggregate affected employees from multiple locations miles apart. In Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir. 1996) (“Rifkin”), the plaintiffs relied on evidence that the defendant’s operations were “quite integrated,” the defendant occasionally transferred employees and office equipment between the sites, and the defendant centrally maintained personnel files. Id. at 1281. The plaintiffs also relied on “similarities and connections amongst the products produced at the different sites.” Id. The court rejected the plaintiffs’ argument and affirmed the trial court’s order granting summary judgment. The court explained the proffered evidence, “even if true, does not establish the necessary connection between locations to constitute a ‘single site.’ There is no evidence that employees and equipment are regularly shared as opposed to occasionally transferred.” Id. at 1281. The court also explained the fact the sites produced the same product was insufficient to establish similarity of the locations’ “operational purpose.” Id. The court concluded the plaintiffs’ evidence failed to “establish a genuine issue of material fact regarding any of these ‘single site’ criteria.” Id. In Viator v. Delchamps Inc., 109 F.3d 1124, 1126 (5th Cir. 1997) (“Viator”), the court concluded that “separate facilities are only to be treated as a single site of employment if all three factors identified in the regulations are met, namely: (1) the separate facilities are in ‘reasonable geographic proximity’ of one another; (2) they are ‘used for the same purpose’; (3) and they ‘share the same staff and equipment.’” Id. at 1127. Applying this criteria to the facts, the court held the separate stores could not be considered a single site of employment under the federal WARN Act because they did not share the same staff or equipment. Id. at 1127-28. The court noted the “evidence established that each of the stores employed and controlled its own workforce and that at no time did the stores employ workers in common.” Id. at 1127. The plaintiffs adduced evidence the defendant permanently transferred about 30 percent of its employees between the stores at least once and temporarily Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 11 of 16 Page ID #:366 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT transferred 20 percent of the employees to assist with shortages in the months leading up to the closures. Id. at 1127-28. But the court still held that even if these transfers were considered “sharing” of employees under the federal WARN Act, “the relatively small number of these transfers suggest that they do not rise to a sufficient level to consider the stores a single site of employment.” Id. at 1128. The court explained “occasional intermingling of various employees is insufficient to place an employer within the [A]ct’s coverage [citations omitted]” and it “only applies if an employer ‘regularly shifts or rotates the same employees from one building to another.’” Id. (quoting 20 C.F.R. § 639.3(i)(3)). There was also evidence the stores shared a pressure washer and transferred produce or other inventory. Id. at 1128. But the court pointed out the “transfers were either closely documented and accounted for on each store’s separate books, or the inventory was traded for other merchandise.” Id. The court concluded there was “no support for the conclusion that the stores regularly shared equipment” under those circumstances. Id. In Int’l Union, United Mine Workers v. Jim Walter Res., Inc., 6 F.3d 722, 723- 24 (11th Cir. 1993) (“Int’l Union”), the court pointed to evidence that: (1) each of the locations had their own managers and supervisors, (2) the employees generally did not rotate among locations or regularly work at more than one location (even though there were exceptions), (3) each location was represented by separate unions, (4) each location was treated separately by the health and safety agencies and the union, and (5) each location had its own “gate, parking lot, office building and bathhouse.” Id. at 726. Importantly, the court rejected the plaintiff’s argument the locations should be considered a single site because the defendant’s corporate office exercised “significant control and authority” at each location. Id. The court warned that overall corporate management should not be confused with the day-to-day management of personnel, which is “the essence of WARN.” Id. The court also explained the fact that each location produced coal was insufficient to treat them all as a single site. Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 12 of 16 Page ID #:367 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT The court noted their “operational purposes,” beyond the production of coal, were not coextensive. Id. at 727. Here, the units affected by CRG’s reduction-in-force were miles apart from each other and were located in three different states: California, Nevada, and Arizona. (UF Nos. 4, 40.) All the units were “geographically separate” and presumptively separate sites of employment. (See UF No. 4.) While the units operated similarly, they were independent of each other. Like in Int’l Union, each unit had its own managers who oversaw the day-to-day operations. (UF Nos. 7-14.) They also had their own facilities and did not share kitchens, dining areas, or parking lots. (UF No. 6.) CRG’s units were also treated and regulated separately by the State of California. (UF Nos. 15-16.) In Int’l Union, the court held that separate locations similarly operated did not constitute a single site of employment. The facts here necessitate the same finding. Further, CRG’s units did not share staff, inventory, or equipment. (UF No. 17.) Rarely and only in emergency situations did the units purchase labor or inventory from another. (UF Nos. 18-30.) A unit would only purchase labor or inventory when absolutely necessary and only if another unit was within close proximity. (UF Nos. 18, 23, 28.) In 2015, less than two percent of total labor performed at CRG’s units was purchased. (UF No. 24.) This figure is substantially less than in Rifkin, where the court held that the defendant’s work sites could not be considered a single site even though the defendant transferred 20 percent of its employees between sites. Moreover, if one unit had to purchase labor or inventory from another as a last-resort, the purchasing unit would be accountable for the cost. (UF Nos. 29.) Viator establishes transfers under these circumstances do not constitute “sharing” under the WARN Act. The Corporate HQ was also a geographically separate site from the other units. (UF No. 4.) It served a different purpose than the units. It provided services to help units with administrative tasks. (UF Nos. 31-32.) It did not share employees, Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 13 of 16 Page ID #:368 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT inventory, or equipment with the units. (UF No. 33.) Likewise, the Corporate HQ did not employ restaurant-specific employees such as hosts, servers, or cooks. (UF No. 34.) In sum, the operations of the units and the Corporate HQ were not sufficiently interrelated to defeat the presumption they were multiple separate sites. Since none of the single sites had enough affected employees to constitute a mass layoff or plant closing, the federal WARN Act does not apply. B. CRG Was Not Required to Provide Notice to Plaintiffs Under the California WARN Act The California WARN Act (Lab. Code, § 1400 et seq.) requires covered “employers” to provide notice to employees 60 days prior to ordering “a mass layoff, relocation, or termination at a covered establishment….” Cal. Labor Code § 1401(a). The Labor Code provides statutory definitions for several key terms. A “covered establishment” is defined as “any industrial or commercial facility or part thereof that employs, or has employed within the preceding 12 months, 75 or more persons.” Cal. Lab. Code § 1400(a). A “mass layoff” occurs when 50 or more employees at a covered establishment are separated from their position for lack of funds work. Id. at § 1400(c) & (d). A “termination” is defined as “the cessation or substantial cessation of industrial or commercial operations in a covered establishment.” Id. at § 1400(f). Here, none of the units closed were “covered establishments” because none employed over 75 persons during the 12-month period preceding the closures. (UF No. 42.) The Corporate HQ is the only “commercial facility” that falls within the scope of the California WARN Act. Still, the Corporate HQ did not order “a mass layoff” or “termination,” as defined by the California WARN Act.2 First, CRG only laid off 46 employees in the 30-day period between April 1, 2015 and April 30, 2 Plaintiffs do not allege CRG engaged in an unlawful relocation. (See ECF No. 31, ¶ 50 (alleging “California Plaintiffs and the subclass members are ‘employees’ at a ‘covered establishment’ subject to a ‘mass layoff’ and/or ‘termination’….”). Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 14 of 16 Page ID #:369 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 2015, so it did not conduct a “mass layoff.” (UF No. 43.) Second, the Corporate HQ continued its operations after the layoff so it did not order a “termination.” (UF No. 43.) Unlike its federal counterpart, the California WARN Act does not authorize an alternate 90-day test to determine whether the requisite number of employees have been let go to constitute a “mass layoff.” See Lab. Code §§ 1400-08. Further, the California WARN Act does not authorize the aggregation of multiple locations to reach the 50-employee threshold for a “mass layoff.”3 Id. Accordingly, CRG did not have to provide notice to its affected employees under the California WARN Act. V. CONCLUSION Based on the foregoing, summary judgment should be granted on all claims. DATED: December 12, 2016 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Spencer C. Skeen Spencer C. Skeen Jennifer L. Santa Maria Tim L. Johnson Attorneys for Defendants CATALINA RESTAURANT GROUP, INC., FOOD MANAGEMENT PARTNERS, INC., and ALAMO CRG, LLC 3 The Department of Labor promulgated regulations authorizing contiguous or geographically proximate locations to be aggregated under the federal WARN Act. 20 C.F.R. § 639.3(i) et seq. There is no corresponding regulation or statutory provision under the California WARN Act. Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 15 of 16 Page ID #:370 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Case No. 15-cv-2626-DDP-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that on December 12, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the Notice of Electronic Filing. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on December 12, 2016. By: /s/ Spencer C. Skeen Spencer C. Skeen 27764653.1 Case 2:15-cv-02626-DDP-JPR Document 53-1 Filed 12/12/16 Page 16 of 16 Page ID #:371 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Spencer C. Skeen CA Bar No. 182216 spencer.skeen@ogletreedeakins.com Jennifer L. Santa Maria CA Bar No. 225875 jennifer.santamaria@ogletreedeakins.com Tim L. Johnson CA Bar No. 265794 tim.johnson@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, CA 92122 Telephone: 858.652.3100 Facsimile: 858.652.3101 Attorneys for Defendants CATALINA RESTAURANT GROUP, INC., FOOD MANAGEMENT PARTNERS, INC., and ALAMO CRG, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION RONALD ROSS Plaintiff(s), v. CATALINA RESTAURANT GROUP, INC., et al. Defendant(s). Case No. 15-cv-2626-DDP-JPR [Consolidated with Barnett v. Food Management Partners, Inc., No. 2:15-cv- 3140; and Hodge v. Food Management Partners, Inc., No. 5:15-cv-0996] STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Date: January 9, 2017 Time: 10:00 a.m. Place: Courtroom 9C, Ninth Floor Judge: Honorable Dean D. Pregerson Complaint Filed: April 8, 2015 Trial Date: None Set Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 1 of 13 Page ID #:372 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Under Local Rule 56-1 of the United States District Court for the Central District of California, Defendants submit this Statement of Uncontroverted Facts and Conclusions of Law in support of the Motion for Summary Judgment. I. UNCONTROVERTED FACTS No. Uncontroverted Fact Supporting Evidence 1. Catalina Restaurant Group, Inc. (“CRG”) owns and operates restaurants (known as “units”) in California and Arizona under its Coco’s and Carrows brands. Dec. of Bill Runyon (“Runyon Dec.”) ¶ 3. 2. In 2015, CRG had approximately 158 units in California, Nevada, and Arizona. Runyon Dec.¶ 4. 3. CRG had a corporate headquarter in Carlsbad, California that provided administrative support to its units (“Corporate HQ”). Runyon Dec. ¶ 5. 4. CRG’s units operating in 2015 were geographically separated miles apart from each other and the Corporate HQ. Runyon Dec. ¶ 6. 5. Each unit was strategically placed to serve its local market. Runyon Dec. ¶ 7. 6. CRG’s units did not share facilities and each had its own kitchen, dining area, and parking lot. Runyon Dec. ¶ 8. 7. CRG’s units operated independently of one another. Runyon Dec. ¶ 9. Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 2 of 13 Page ID #:373 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 8. Each unit had its own managers (called restaurant managers or team leaders) responsible for overseeing and managing the unit (“Restaurant Managers”). Runyon Dec. ¶ 10. 9. Among other duties, the Restaurant Managers managed staff, ordered inventory and equipment, maintained the budget, and forecasted the needs of the unit. Runyon Dec. ¶ 11. 10. Restaurant Managers were responsible for interviewing, hiring, disciplining, and discharging employees. Runyon Dec. ¶ 12. 11. Each unit handled local marketing and business promotions. Runyon Dec. ¶ 13. 12. Each unit managed its own labor, inventory, and equipment budgets. Runyon Dec. ¶ 14. 13. CRG separately tracked profits and losses for each unit. Runyon Dec. ¶ 15. 14. Each unit and its Restaurant Managers were evaluated based on the unit’s individual performance. Runyon Dec. ¶ 16. 15. CRG’s units were treated and regulated separately by California health and food agencies. Runyon Dec. ¶ 17. 16. CRG’s units were issued separate liquor licenses by the State of California. Runyon Dec. ¶ 18. Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 3 of 13 Page ID #:374 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 17. Given that the units operated on their own, they did not share staff, inventory, or equipment. Runyon Dec. ¶ 19. 18. In emergency situations, one unit could purchase labor or inventory from another. Runyon Dec. ¶ 20. 19. However, the purchase of labor or inventory was a last-resort and rarely happened. Runyon Dec. ¶ 21. 20. With regard to labor, if a unit was understaffed, the Restaurant Managers would either make-do without additional staff or look to their own team members for additional labor. Runyon Dec. ¶ 22. 21. CRG emphasized cross-training for employees so that they could fill-in for other employees when needed. Runyon Dec. ¶ 23. 22. The Restaurant Managers looked to team members from their own unit to fill-in because those employees were familiar with the unit’s particularities, processes, and procedures. Runyon Dec. ¶ 24. 23. If the unit absolutely needed additional staffing, and no one from the unit’s team was available, only then would Restaurant Managers seek labor from another unit and only if another unit was within close proximity. Runyon Dec. ¶ 25. Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 4 of 13 Page ID #:375 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 24. Less than two percent of total labor performed at CRG’s units was purchased in 2015. Runyon Dec. ¶ 26. 25. The procedure for purchasing inventory from another unit was similar to the procedure for purchasing labor. Runyon Dec. ¶ 27. 26. The Restaurant Managers would first try to survive without the missing supplies until the next delivery cycle (inventory was ordered bi- weekly). Runyon Dec. ¶ 28. 27. If the Restaurant Managers determined the unit could not wait until the next delivery cycle, they could go to a local vendor and purchase necessary items. Runyon Dec. ¶ 29. 28. The only time the Restaurant Managers would seek to purchase items from another unit is if the items were otherwise unavailable and only if another unit was within close proximity. Runyon Dec. ¶ 30. 29. Where labor or inventory was purchased, the costs would come out of the budget from the purchasing unit. Runyon Dec. ¶ 31. 30. Each unit could decline requests from another unit to purchase labor or inventory. Runyon Dec. ¶ 32. 31. In 2015, CRG provided support to its units through its Corporate HQ. Runyon Dec. ¶ 33. Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 5 of 13 Page ID #:376 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 32. The Corporate HQ provided services to help units with administrative tasks such as accounting, information technologies, human resources, and marketing. Runyon Dec. ¶ 34. 33. The Corporate HQ did not share employees, inventory, or equipment with the units. Runyon Dec. ¶ 35. 34. The Corporate HQ did not employ restaurant- specific employees such as hosts, servers, or cooks. Runyon Dec. ¶ 36. 35. CRG’s upper-level executives were available as a resource to the Restaurant Managers. Runyon Dec. ¶ 37. 36. The executives included the Vice President of Operations, Regional Directors of Operations, Area Directors of Operations, and Area Managers (collectively “Corporate Managers”). Runyon Dec. ¶ 38. 37. The Corporate Managers were assigned to assist multiple units. Runyon Dec. ¶ 39. 38. The Corporate Managers provided advice, training, and support based on a given unit’s requests or needs. Runyon Dec. ¶ 40. 39. The Corporate Managers were not assigned to work at any specific unit and they were not responsible for the day-to-day management of operations or personnel at the units. Runyon Dec. ¶ 41. Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 6 of 13 Page ID #:377 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 40. In April 2015, CRG closed approximately 75 of its units in California, Nevada, and Arizona. Dec. of Peter Donbavand (“Donbavand Dec.”) ¶ 3. 41. At the time of the closures, the individual units employed between 9 and 41 employees. Donbavand Dec. ¶ 4, Ex. 1. 42. In the 12 months prior to the closings, none of the units employed over 75 employees. Donbavand Dec. ¶ 5. 43. In April 2015, CRG also laid off 46 employees from its Corporate HQ but continued to operate. Donbavand Dec. ¶ 6. 44. CRG did not layoff more than 50 people in the aggregate at the Corporate HQ in the 90 days before or the 90 days after April 2015. Donbavand Dec. ¶ 7. II. CONCLUSIONS OF LAW 1. Summary judgment should be granted in whole or in part where “there is no genuine dispute as to any material fact and … the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). 2. “Where the plaintiff has the ultimate burden of proof, the defendant may prevail on a motion for summary judgment simply by pointing to the plaintiff’s failure to make a showing sufficient to establish the existence of an element essential to the plaintiff’s case.” Field v. Am. Mortgage Exp. Corp., 2011 WL 3354344, at *3 (N.D. Cal. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)) (internal quotations omitted). 3. To avoid summary judgment, the non-moving party must produce “evidence that is significantly probative or more than ‘merely colorable’ that a genuine issue of material fact exists for trial.” LVRC Holdings, LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009). Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 7 of 13 Page ID #:378 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 4. “[B]are allegations without evidentiary support” or a “scintilla of evidence” cannot create a genuine dispute of material fact. Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1033, n. 14 (9th Cir. 2008); Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). 5. The federal WARN Act requires covered employers to provide notice to “affected employees” of a “plant closing” or a “mass layoff.” 29 U.S.C. § 2102(a); Bader v. Northern Line Layers, Inc., 503 F.3d 813, 817 (9th Cir. 2007) (“Bader”). Put another way, “[t]o constitute a WARN violation, an employer must have ordered a plant closing or mass layoff without providing each employee, either individually or through her representatives, with sixty-days advance notice.” Frymire v. Ampex Corp., 61 F.3d 757, 764 (10th Cir. 1995) (“Frymire”) (citing 29 U.S.C. § 2102). 6. The federal WARN Act defines “affected employees” as “employees who may reasonably be expected to experience an employment loss as a consequence of a proposed plant closing or mass layoff by their employer.” 29 U.S.C. § 2101(a)(5). 7. A “plant closing” is “the loss of employment for at least 50 full-time employees at a single site of employment during any 30–day period, as a result of the permanent or temporary shutdown of a single site of employment.” Bader, 503 F.3d at 817 (citing 29 U.S.C. § 2101(a)(2)). 8. A “mass layoff” is a “reduction in force that does not result from a plant closing but includes the loss of at least 50 full-time employees at a single site and at least 33 percent of the total workforce at that site.” Id. (citing 29 U.S.C. § 2101(a)(3)). 9. “A single site of employment can refer to either a single location or a group of contiguous locations.” 20 C.F.R. 639.3(i)(1). 10. “[W]orkers who suffer an employment loss at another single site of employment are not counted in determining whether plant closing or mass layoff coverage thresholds are met.” 54 Fed. Reg. 16,042, 16,047. Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 8 of 13 Page ID #:379 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 11. “As a general rule, a geographic connection or proximity is required to define ‘single site of employment.’” Id. at 16,049–50. 12. Geographically separate locations are presumed to be multiple, not single sites. See Frymire, 61 F.3d at 766. 13. Buildings that are several blocks or miles apart are “geographically separate” sites. 9A Ind. Empl. Rights Man. (BNA) 595:954 (1988); Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir. 1996). 14. The only time when geographically separate locations are a single site is where they have an “inextricable operational connection.” 54 Fed. Reg. 16,042, 16,049–50. But “this exception is intended to be read narrowly to cover those rare situations in which two separate buildings share staff, equipment and functions.” Id. (emphasis added). 15. In Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir. 1996) (“Rifkin”), the plaintiffs relied on evidence that the defendant’s operations were “quite integrated,” the defendant occasionally transferred employees and office equipment between the sites, and the defendant centrally maintained personnel files. Id. at 1281. The plaintiffs also relied on “similarities and connections amongst the products produced at the different sites.” Id. The court rejected the plaintiffs’ argument and affirmed the trial court’s order granting summary judgment. The court explained the proffered evidence, “even if true, does not establish the necessary connection between locations to constitute a ‘single site.’ There is no evidence that employees and equipment are regularly shared as opposed to occasionally transferred.” Id. at 1281. The court also explained the fact the sites produced the same product was insufficient to establish similarity of the locations’ “operational purpose.” Id. The court concluded the plaintiffs’ evidence failed to “establish a genuine issue of material fact regarding any of these ‘single site’ criteria.” Id. 16. In Viator v. Delchamps Inc., 109 F.3d 1124, 1126 (5th Cir. 1997) (“Viator”), the court concluded that “separate facilities are only to be treated as a Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 9 of 13 Page ID #:380 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT single site of employment if all three factors identified in the regulations are met, namely: (1) the separate facilities are in ‘reasonable geographic proximity’ of one another; (2) they are ‘used for the same purpose’; (3) and they ‘share the same staff and equipment.’” Id. at 1127. Applying this criteria to the facts, the court held the separate stores could not be considered a single site of employment under the federal WARN Act because they did not share the same staff or equipment. Id. at 1127-28. The court noted the “evidence established that each of the stores employed and controlled its own workforce and that at no time did the stores employ workers in common.” Id. at 1127. The plaintiffs adduced evidence the defendant permanently transferred about 30 percent of its employees between the stores at least once and temporarily transferred 20 percent of the employees to assist with shortages in the months leading up to the closures. Id. at 1127-28. But the court still held that even if these transfers were considered “sharing” of employees under the federal WARN Act, “the relatively small number of these transfers suggest that they do not rise to a sufficient level to consider the stores a single site of employment.” Id. at 1128. The court explained “occasional intermingling of various employees is insufficient to place an employer within the [A]ct’s coverage [citations omitted]” and it “only applies if an employer ‘regularly shifts or rotates the same employees from one building to another.’” Id. (quoting 20 C.F.R. § 639.3(i)(3)). There was also evidence the stores shared a pressure washer and transferred produce or other inventory. Id. at 1128. But the court pointed out the “transfers were either closely documented and accounted for on each store’s separate books, or the inventory was traded for other merchandise.” Id. The court concluded there was “no support for the conclusion that the stores regularly shared equipment” under those circumstances. Id. 17. In Int’l Union, United Mine Workers v. Jim Walter Res., Inc., 6 F.3d 722, 723-24 (11th Cir. 1993) (“Int’l Union”), the court pointed to evidence that: (1) each of the locations had their own managers and supervisors, (2) the employees generally did not rotate among locations or regularly work at more than one location Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 10 of 13 Page ID #:381 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (even though there were exceptions), (3) each location was represented by separate unions, (4) each location was treated separately by the health and safety agencies and the union, and (5) each location had its own “gate, parking lot, office building and bathhouse.” Id. at 726. Importantly, the court rejected the plaintiff’s argument the locations should be considered a single site because the defendant’s corporate office exercised “significant control and authority” at each location. Id. The court warned that overall corporate management should not be confused with the day-to-day management of personnel, which is “the essence of WARN.” Id. The court also explained the fact that each location produced coal was insufficient to treat them all as a single site. The court noted their “operational purposes,” beyond the production of coal, were not coextensive. Id. at 727. 18. The California WARN Act (Lab. Code, § 1400 et seq.) requires covered “employers” to provide notice to employees 60 days prior to ordering “a mass layoff, relocation, or termination at a covered establishment….” Cal. Labor Code § 1401(a). 19. A “covered establishment” is defined as “any industrial or commercial facility or part thereof that employs, or has employed within the preceding 12 months, 75 or more persons.” Cal. Lab. Code § 1400(a). 20. A “mass layoff” occurs when 50 or more employees at a covered establishment are separated from their position for lack of funds work. Id. at § 1400(c) & (d). 21. A “termination” is defined as “the cessation or substantial cessation of industrial or commercial operations in a covered establishment.” Id. at § 1400(f). 22. Unlike its federal counterpart, the California WARN Act does not authorize an alternate 90-day test to determine whether the requisite number of employees have been let go to constitute a “mass layoff.” See Lab. Code §§ 1400-08. Further, the California WARN Act does not authorize the aggregation of multiple Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 11 of 13 Page ID #:382 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT locations to reach the 50-employee threshold for a “mass layoff.”1 Id. Accordingly, CRG did not have to provide notice to its affected employees under the California WARN Act. DATED: December 12, 2016 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Spencer C. Skeen Spencer C. Skeen Jennifer L. Santa Maria Tim L. Johnson Attorneys for Defendants CATALINA RESTAURANT GROUP, INC., FOOD MANAGEMENT PARTNERS, INC., and ALAMO CRG, LLC 1 The Department of Labor promulgated regulations authorizing contiguous or geographically proximate locations to be aggregated under the federal WARN Act. 20 C.F.R. § 639.3(i) et seq. There is no corresponding regulation or statutory provision under the California WARN Act. Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 12 of 13 Page ID #:383 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Case No. 15-cv-2626-DDP-JPR SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that on December 12, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the Notice of Electronic Filing. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on December 12, 2016. By: /s/ Spencer C. Skeen Spencer C. Skeen 27824543.1 Case 2:15-cv-02626-DDP-JPR Document 53-2 Filed 12/12/16 Page 13 of 13 Page ID #:384 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 15-cv-2626-DDP-JPR DECLARATION OF BILL RUNYON IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Spencer C. Skeen CA Bar No. 182216 spencer.skeen@ogletreedeakins.com Jennifer L. Santa Maria CA Bar No. 225875 jennifer.santamaria@ogletreedeakins.com Tim L. Johnson CA Bar No. 265794 tim.johnson@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, CA 92122 Telephone: 858.652.3100 Facsimile: 858.652.3101 Attorneys for Defendants CATALINA RESTAURANT GROUP, INC., FOOD MANAGEMENT PARTNERS, INC., and ALAMO CRG, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION RONALD ROSS Plaintiff(s), v. CATALINA RESTAURANT GROUP, INC., et al. Defendant(s). Case No. 15-cv-2626-DDP-JPR [Consolidated with Barnett v. Food Management Partners, Inc., No. 2:15-cv- 3140; and Hodge v. Food Management Partners, Inc., No. 5:15-cv-0996] DECLARATION OF BILL RUNYON IN SUPPORT OF DEFENDANTS’ MOTION AND MOTION FOR SUMMARY JUDGMENT Date: January 9, 2017 Time: 10:00 a.m. Place: Courtroom 9C, Ninth Floor Judge: Honorable Dean D. Pregerson Complaint Filed: April 8, 2015 Trial Date: None Set Case 2:15-cv-02626-DDP-JPR Document 53-3 Filed 12/12/16 Page 1 of 5 Page ID #:385 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. 15-cv-2626-DDP-JPR DECLARATION OF BILL RUNYON IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DECLARATION OF BILL RUNYON I, Bill Runyon, declare: 1. I was the Vice President of Operations for Catalina Restaurant Group, Inc. (“CRG”) from 2012 until April 2015. I am currently the Director of Operations for CRG. Based on my work for CRG, I am familiar with its corporate records, processes, procedures, and operations as they existed in 2014 and 2015. I have knowledge, possession, and/or control of, among other things, information and/or documents concerning the operations at CRG’s restaurant locations (known as “units”), the interaction between the units, and the support provided to those units. 2. The facts stated in this declaration are based on my personal knowledge and on CRG’s records. If called and sworn as a witness, I could and would testify competently and truthfully to the matters stated herein. 3. CRG owns and operates restaurants (known as “units”) in California and Arizona under its Coco’s and Carrows brands. 4. In 2015, CRG had approximately 158 units in California, Nevada, and Arizona. 5. CRG had a corporate headquarter in Carlsbad, California that provided administrative support to its units (“Corporate HQ”). Proximity and Operation of Units 6. CRG’s units operating in 2015 were geographically separated miles apart from each other and the Corporate HQ. 7. Each unit was strategically placed to serve its local market. 8. CRG’s units did not share facilities and each had its own kitchen, dining area, and parking lot. 9. CRG’s units operated independently of one another. 10. Each unit had its own managers (called restaurant managers or team leaders) responsible for overseeing and managing the unit (“Restaurant Managers”). Case 2:15-cv-02626-DDP-JPR Document 53-3 Filed 12/12/16 Page 2 of 5 Page ID #:386 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 15-cv-2626-DDP-JPR DECLARATION OF BILL RUNYON IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 11. Among other duties, the Restaurant Managers managed staff, ordered inventory and equipment, maintained the budget, and forecasted the needs of the unit. 12. Restaurant Managers were responsible for interviewing, hiring, disciplining, and discharging employees. 13. Each unit handled local marketing and business promotions. 14. Each unit managed its own labor, inventory, and equipment budgets. 15. CRG separately tracked profits and losses for each unit. 16. Each unit and its Restaurant Managers were evaluated based on the unit’s individual performance. 17. CRG’s units were treated and regulated separately by California health and food agencies. 18. CRG’s units were issued separate liquor licenses by the State of California. 19. Given that the units operated on their own, they did not share staff, inventory, or equipment. 20. In emergency situations, one unit could purchase labor or inventory from another. 21. However, the purchase of labor or inventory was a last-resort and rarely happened. 22. With regard to labor, if a unit was understaffed, the Restaurant Managers would either make-do without additional staff or look to their own team members for additional labor. 23. CRG emphasized cross-training for employees so that they could fill-in for other employees when needed. 24. The Restaurant Managers looked to team members from their own unit to fill-in because those employees were familiar with the unit’s particularities, processes, and procedures. Case 2:15-cv-02626-DDP-JPR Document 53-3 Filed 12/12/16 Page 3 of 5 Page ID #:387 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. 15-cv-2626-DDP-JPR DECLARATION OF BILL RUNYON IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 25. If the unit absolutely needed additional staffing, and no one from the unit’s team was available, only then would Restaurant Managers seek to purchase labor from another unit and only if another unit was within close proximity. 26. Based on these facts, I estimate less than two percent of total labor performed at CRG’s units was purchased in 2015. 27. The procedure for purchasing inventory from another unit was similar to the procedure for purchasing labor. 28. The Restaurant Managers would first try to survive without the missing supplies until the next delivery cycle (inventory was ordered bi-weekly). 29. If the Restaurant Managers determined the unit could not wait until the next delivery cycle, they could go to a local vendor and purchase necessary items. 30. The only time the Restaurant Managers would seek to purchase items from another unit is if the items were otherwise unavailable and only if another unit was within close proximity. 31. Where labor or inventory was purchased, the costs would come out of the budget from the purchasing unit. 32. Each unit could decline requests from another unit to purchase labor or inventory. Support for Units 33. In 2015, CRG provided support to its units through its Corporate HQ. 34. The Corporate HQ provided services to help units with administrative tasks such as accounting, information technologies, human resources, and marketing. 35. The Corporate HQ did not share employees, inventory, or equipment with the units. 36. The Corporate HQ did not employ restaurant-specific employees such as hosts, servers, or cooks. 37. CRG’s upper-level executives were available as a resource to the Restaurant Managers. Case 2:15-cv-02626-DDP-JPR Document 53-3 Filed 12/12/16 Page 4 of 5 Page ID #:388 Case 2:15-cv-02626-DDP-JPR Document 53-3 Filed 12/12/16 Page 5 of 5 Page ID #:389 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 15-cv-2626-DDP-JPR DECLARATION OF PETER DONBAVAND IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Spencer C. Skeen CA Bar No. 182216 spencer.skeen@ogletreedeakins.com Jennifer L. Santa Maria CA Bar No. 225875 jennifer.santamaria@ogletreedeakins.com Tim L. Johnson CA Bar No. 265794 tim.johnson@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, CA 92122 Telephone: 858.652.3100 Facsimile: 858.652.3101 Attorneys for Defendants CATALINA RESTAURANT GROUP, INC., FOOD MANAGEMENT PARTNERS, INC., and ALAMO CRG, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION RONALD ROSS Plaintiff(s), v. CATALINA RESTAURANT GROUP, INC., et al. Defendant(s). Case No. 15-cv-2626-DDP-JPR [Consolidated with Barnett v. Food Management Partners, Inc., No. 2:15-cv- 3140; and Hodge v. Food Management Partners, Inc., No. 5:15-cv-0996] DECLARATION OF PETER DONBAVAND IN SUPPORT OF DEFENDANTS’ MOTION AND MOTION FOR SUMMARY JUDGMENT Date: January 9, 2017 Time: 10:00 a.m. Place: Courtroom 9C, Ninth Floor Judge: Honorable Dean D. Pregerson Complaint Filed: April 8, 2015 Trial Date: None Set Case 2:15-cv-02626-DDP-JPR Document 53-4 Filed 12/12/16 Page 1 of 3 Page ID #:390 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. 15-cv-2626-DDP-JPR DECLARATION OF PETER DONBAVAND IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DECLARATION OF PETER DONBAVAND I, Peter Donbavand, declare: 1. I am an officer for Catalina Restaurant Group, Inc. (“CRG”). In March 2015, Alamo CRG, LLC (“Alamo”) purchased CRG but CRG continued to operate. Alamo then hired Food Management Partners (“FMP”) to act as the managing agent of Alamo. I am currently the Vice President of Real Estate and Business Development for FMP. As an officer for CRG, and as the Vice President of Real Estate and Business Development for FMP, I am familiar with the April 2015 store closings and the reduction-in-force at CRG’s corporate headquarters (“Corporate HQ”) that are the subject of this lawsuit. I have knowledge, possession, and/or control of, among other things, information and/or documents concerning the number of employees who worked at Corporate HQ and each of CRG’s restaurant locations (known as “units”), the number of employees affected by the unit closings and reduction-in-force, and the circumstances surrounding the unit closings and reduction-in-force. 2. The facts stated in this declaration are based on my personal knowledge and/or CRG’s records, and if called and sworn as a witness, I could and would testify competently and truthfully to the matters stated herein. 3. In April 2015, CRG closed approximately 75 of its units in California, Nevada, and Arizona. 4. At the time of the closures, the individual units employed between 9 and 41 employees. Attached hereto as Exhibit 1 is a true and accurate spreadsheet showing the number of employees who worked at each of the units closed in April 2015. The headcount at each unit is based on the number of unique payroll checks issued by the unit. 5. In the 12 months prior to the closings, none of the units employed over 75 employees. Case 2:15-cv-02626-DDP-JPR Document 53-4 Filed 12/12/16 Page 2 of 3 Page ID #:391 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 15-cv-2626-DDP-JPR DECLARATION OF PETER DONBAVAND IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 6. In April 15, CRG laid off 46 employees from its Corporate HQ but continued to operate. Specifically, CRG laid off 28 employees on April 1, 2015 and an additional 18 between April 10, 2015 and April 30, 2015, for a total of 46 employees. 7. CRG did not layoff more than 50 people in the aggregate at the Corporate HQ in the 90 days before or the 90 days after April 2015. I declare under penalty of perjury pursuant to the laws of the State of California and the United States that the foregoing is true and correct and is executed this 12th day of December, 2016, at San Antonio, Texas. Peter Donbavand 27824500.1 Case 2:15-cv-02626-DDP-JPR Document 53-4 Filed 12/12/16 Page 3 of 3 Page ID #:392 Case No. 15-cv-2626-DDP-JPR Index of Exhibits Declaration of Peter Donbavand Exhibit No. Description Page Range 1 Spreadsheet showing the number of employees who worked at each of the units closed in April 2015 1:1-7 27833911.1 Case 2:15-cv-02626-DDP-JPR Document 53-5 Filed 12/12/16 Page 1 of 1 Page ID #:393 Case 2:15-cv-02626-DDP-JPR Document 53-6 Filed 12/12/16 Page 1 of 8 Page ID #:394 Case 2:15-cv-02626-DDP-JPR Document 53-6 Filed 12/12/16 Page 2 of 8 Page ID #:395 Case 2:15-cv-02626-DDP-JPR Document 53-6 Filed 12/12/16 Page 3 of 8 Page ID #:396 Case 2:15-cv-02626-DDP-JPR Document 53-6 Filed 12/12/16 Page 4 of 8 Page ID #:397 Case 2:15-cv-02626-DDP-JPR Document 53-6 Filed 12/12/16 Page 5 of 8 Page ID #:398 Case 2:15-cv-02626-DDP-JPR Document 53-6 Filed 12/12/16 Page 6 of 8 Page ID #:399 Case 2:15-cv-02626-DDP-JPR Document 53-6 Filed 12/12/16 Page 7 of 8 Page ID #:400 Case 2:15-cv-02626-DDP-JPR Document 53-6 Filed 12/12/16 Page 8 of 8 Page ID #:401 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 15-cv-2626-DDP-JPR [PROPOSED] JUDGMENT GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION RONALD ROSS Plaintiff(s), v. CATALINA RESTAURANT GROUP, INC., et al. Defendant(s). Case No. 15-cv-2626-DDP-JPR [Consolidated with Barnett v. Food Management Partners, Inc., No. 2:15-cv- 3140; and Hodge v. Food Management Partners, Inc., No. 5:15-cv-0996] [PROPOSED] JUDGMENT GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Date: January 9, 2017 Time: 10:00 a.m. Place: Courtroom 9C, Ninth Floor Judge: Honorable Dean D. Pregerson Complaint Filed: April 8, 2015 Trial Date: None Set Case 2:15-cv-02626-DDP-JPR Document 53-7 Filed 12/12/16 Page 1 of 2 Page ID #:402 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. 15-cv-2626-DDP-JPR [PROPOSED] JUDGMENT GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants’ Motion for Summary Judgment came on for hearing before this Court on January 9, 2017. Having reviewed the Parties’ submissions, heard the arguments of counsel, and considered all other matters presented to the Court, and for good cause shown, IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment is GRANTED. The Court finds the undisputed material facts establish that: 1. Defendants did not engage in a “plant closing” or “mass layoff” on April 2015. Accordingly, the federal WARN Act did not apply to Defendants and they were under no obligation to provide advance notices of the closures or reduction-in-force; 2. The restaurant locations and Corporate Headquarters in Carlsbad, California were separate sites, and cannot be aggregated with other sites for purposes of the federal WARN Act due to their independent operations; 3. None of the restaurant locations are considered “covered establishments” under the California WARN Act; and 4. Defendants did not order a “mass layoff” or “termination, as defined by the California WARN Act, in April 2015 at its Corporate Headquarters in Carlsbad, California. Based on the foregoing, the Court HEREBY enters judgment in Defendants favor. Defendant is entitled to recover its reasonable attorney fees and costs. IT IS SO ORDERED. Dated: ______ By: Hon. Dean D. Pregerson United States District Judge 27824506.1 Case 2:15-cv-02626-DDP-JPR Document 53-7 Filed 12/12/16 Page 2 of 2 Page ID #:403