GOONEWARDENE v. ADPRespondents’ Request for Judicial NoticeCal.June 20, 2017SUPREME COURT Case No. 8238941 F | L E D JUN 20 2917 IN THE SUPREME COURT OF THE Jorge Navarrete Clerk STATE OF CALIFORNIA Deputy SHARMALEE GOONEWARDENE,anindividual, Plaintiffand Appellant, VS. ADP, LLC; ADP PAYROLL SERVICES, INC.; AD PROCESSING,LLC, Defendants and Respondents. On Review of a Decision of the California Court of Appeal, Second Appellate District, Division Four, No. B267010 On Appealfrom the Superior Court of California, County of Los Angeles The Hon. William Barry, Judge Civil Case No. TC026406 PETITIONERS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF REPLY BRIEF ON THE MERITS; MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF ROBERTA. LEWIS; [PROPOSED] ORDER Robert A. Lewis* (SBN 83630) Thomas M.Peterson (SBN 96011) Zachary S. Hill (SBN 275886) MORGAN, LEWIS & BOCKIUS LLP One Market Street, Spear Tower San Francisco, CA 94105 Telephone No.: (415) 442-1000 Facsimile No.: (415) 442-1001 Attorneys for Defendants, Respondents and Petitioners ADP, LLC; ADP PAYROLL SERVICES, INC.; AD PROCESSING, LLC DB3/ 201475244.3 MOTION REQUESTING JUDICIAL NOTICE Pursuant to California Evidence Code sections 452 and 459, and California Rules of Court, Rule 8.252(a), Defendants-Petitioners ADP, LLC; ADP Payroll Services, Inc.; AD Processing, LLC (“ADP”) respectfully request that this Court take judicial notice of certain proceedingsin this case occurring in the Superior Court, County of Los Angeles. Specifically, ADP asks that judicial notice be taken of the Superior Court’s April 19, 2017 Minute Order adjudicating Plaintiff-Respondent Sharmalee Goonewardene’s California Labor Code, California Fair Labor Standards Act, and California Business & Professions Code section 17200 claims, presented by her against her employer Altour International, Inc. Dated: June 20, 2017 Respectfully submitted, MORGAN,LEWIS & BOCKIUS LLP By: Me =Nowe Robert A. Lewis c? Attorneys for Defendants, Respondents and Petitioners ADP, LLC; ADP PAYROLL SERVICES, INC.; AD PROCESSING, LLC DB3/ 201475244.3 1 MEMORANDUM OF POINTS AND AUTHORITIES A reviewing court may take judicial notice of any matter specified in Evidence Code section 452. “In determining the propriety of taking judicial notice of a matter, or the tenor thereof, the reviewing court has the same powerasthe trial court under Section 454.” Evidence Code section 459(b). A court may take judicial notice of the “{o]fficial acts” of the legislative and Judicial branches. Evidence Codesection 452(c). Judicial notice of court recordsis appropriate when “the records in question are relevant” to a contested issue. Taus v. Loftus (2007) 40 Cal.4th 683, 726. Judicial notice may properly be taken of a judgmententered after an appeal wasfiled, where that judgmentbears on the appeal. Palm Springs Paint Company v. Arenas (1966) 242 Cal.App.2d 682, 687-688. Where judgmentin favor of one co-defendant renders a pending appeal “academic,”“[i]t is of no momentthat[the] issue is raised for the first time on appeal.” Saavedra v. Orange County Consolidated Transportation Service Agency (1992) 11 Cal.App.4th 824, 828-829. In Saavedrathe plaintiff alleged three causes ofaction: 1) against her prior employer and supervisor, for discrimination: 2) against her prior employer for wrongful termination; and 3) against her prior employer and supervisor for intentionalinfliction of emotional distress. Jd. at 826. Saavedra’s factual allegations all concernedthe actions ofher prior supervisor, who was“the only individual identified” in her administrative complaint, “the only person with whom Saavedra dealt. His actions were those of” the employer-defendant. Jd. at 827. The supervisor obtained summary adjudication of the two causesofaction against him; the DB3/ 201475244.3 2 court held the third cause of action was preempted by worker’s compensation. /d. at 826. A jury determined the employer wasnotliable on the remaining two causes of action. /bid. In the ensuing appeal of the grant of summary judgmentin favor of the supervisor, the Court of Appeal held the jury “impliedly found in favor of”the supervisor in finding the employernotliable, as the plaintiff's theories of employer liability were “based solely on a respondent superior concept,” so that the employer “would be liable only if [the supervisor] did something wrong. Byfinding [the employer] blameless, the jury a fortiori absolved”the supervisor. Jd. at 829 (emphasis in the original). Here, the judicially noticeable material tends to suggest Plaintiff's claims are (or will become) academic. That material greatly changes the complexion of the issues before the Court. Plaintiff alleges that her employer’s payroll service provider should be liable on various theories because she was not paid proper amounts of overtime pay she allegedly earned. She also claims the wage statements she received with her paychecks misstated what she was owed and were defective for that reason. While pursuing these claims on appeal, Plaintiff went to trial against her employer, Altour International, Inc. With respect to her wage-and-hour claims against her employer, including a claim for unpaid overtime, the Superior Court ruledvia its April 19, 2017 Order, whichstates in part: Every witness whotestified at trial, including Plaintiff herself, confirmed that she regularly did not timely report her overtime. She turned in timesheets weeks, and, at times, months after she performed the work. This created what can only be interpreted as an admini- strative nightmare, with overtime payments spread out over multiple DB3/ 201475244.3 3 paychecks. Documentary andtestimonial evidence show that Defendants acted reasonably and responsibly in paying overtime. Plaintiff did not offer competent evidence that would establish a specific amountthat she is actually owed. An audit of her timesheets against her actual payments, which are both in evidence, indicates errors in payment amounting to $6,143.76. This accounts forall overtime workedat “double time”rates. Plaintiff is entitled to this amount. This relatively small underpayment wasnot willful or intentional. Plaintiff is not, therefore, entitled to liquidated damages under 29 U.S.C. 260 or for waiting time penalties under Cal. Lab. Code section 203. This factual adjudication raises the likely, eventual application of both collateral estoppel! and the onesatisfaction rule.” Thetrial court has found that overtime calculation errors were attributable to Plaintiff's mistaken conduct and the court has both adjudicated issues as to overtime pay obligations and awarded to Plaintiff the only sums owed. Apart from these considerations, judicial notice is warranted because this Court has been asked by Plaintiff to evaluate the issues raised in this case based on factual allegations that are inconsistent with what the Superior Court found based in part on ' “fAJny issue necessarily decidedin the litigation of a cause of action that has been finally determined by a court of competentjurisdiction is conclusively determined as to the parties or their priviesif it is involved in a subsequent lawsuit on a different cause of action.” First N.B.S. Corp. v. Gabrielsen (1986) 179 Cal.App.3d 1189, 1194. “[C]ollateral estoppel may beraised for the first time on appeal when,as here, the judgmentin the other action becomesfinal pending appeal and there was thus no opportunity to raise the issuein thetrial court.” Brake v. Beech Aircraft Corp. (1986) 184 Cal.App.3d 930, 941. * The rule ofsatisfaction provides that “[a]n injured personis entitled to only one satisfaction ofjudgmentfor a single harm, and full payment of a judgment by one tortfeasor dischargesall others who maybeliable for the same injury.” Fletcher v. California Portland Cement Co. (1979) 99 Cal.App.3d 97, 99. The “rule [is] designed to prevent double recovery and never-endinglitigation by dissatisfied claimants.” Ibid. DB3/ 201475244.3 4 Plaintiff's apparent testimonythat she inaccurately reported to her employer the hours she worked. Dated: June 20, 2017 DB3/ 201475244.3 Respectfully submitted, MORGAN, LEWIS & BOCKIUS LLP By: Ue + Je Robert A. Lewis
