Troy Becker vs Launch Technical Workforce Solutions LLC

Case Number

23CV05162

Case Type

Hearing Date / Time

Fri, 06/14/2024 - 10:00

Nature of Proceedings

Motion: Reconsideration

Tentative Ruling

For all reasons discussed herein, the motion of plaintiff for reconsideration of the court’s order granting defendant’s motion to compel arbitration is denied.

Background:

On November 16, 2023, plaintiff Troy Becker filed in this action a complaint against defendant Launch Technical Workforce Solutions, LLC (Launch), alleging two causes of action for penalties under Labor Code section 2698 et seq. (the Private Attorneys General Act of 2004 or PAGA). Plaintiff brings his claims on behalf of himself, the State of California, and all aggrieved employees who were or are employed by Launch and who were “paid on an hourly-plus-per-diem rate of pay during any workweek since one year and 65 days before the filing of [the] [c]omplaint until final resolution of the action….” (Compl., ¶¶ 1 & 28.) Generally, plaintiff alleges that during the time he and other aggrieved employees were employed with Launch, Launch failed to provide meal and rest periods, failed to provide timely and accurate itemized wage statements, and failed to provide reimbursement for necessary business expenditures, among other things. (Id. at ¶¶ 4-13, 20, 37, 40, 42-44, 46-48 & 55-70.)

On January 9, 2024, Launch filed a motion (the arbitration motion) for an order compelling plaintiff to arbitrate his individual PAGA claims, dismissing plaintiff’s individual PAGA claims, and staying the litigation of plaintiff’s nonindividual PAGA claims pending the outcome of the arbitration. The arbitration motion was based on an arbitration agreement signed by plaintiff on November 29, 2022 (the arbitration agreement), while plaintiff was employed with Launch, which Launch contends required plaintiff to submit all individual PAGA claims to arbitration. Plaintiff opposed the motion, arguing that the PAGA claims alleged in this matter were expressly carved out of the arbitration agreement based on the existence of an unenforceable waiver of plaintiff’s right to bring a nonindividual PAGA action.

On March 29, 2024, the court issued its Minute Order (the Minute Order) granting the arbitration motion, in part, and ordering the individual claims of plaintiff alleged under PAGA to proceed to arbitration. The court further ordered this action stayed pending completion of the arbitration.

On April 2, 2024, Launch submitted a corrected proposed order in accordance with the Minute Order, which was entered on April 4, 2024.

On April 8, 2024, plaintiff filed the present motion for reconsideration of the Minute Order. The motion is opposed by Launch.

Analysis:

The present motion is procedurally deficient as further discussed below.

A notice of motion must “state … the grounds upon which it will be made….” (Code Civ. Proc., § 1010; see also Cal. Rules of Court, rule 3.1110(a) [the “notice of motion must state in the opening paragraph … the grounds for issuance of the order”].) “The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) “As a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 (Luri).)

Though the notice of the present motion generally states that plaintiff moves for an order for reconsideration of the Minute Order, wholly absent from the notice is any statement of the grounds, whether statutory or otherwise, for issuance of the order requested by plaintiff. Therefore, plaintiff has failed to sufficiently define the issues for both Launch and the court. Further, and as noted above, the court is not required to consider any grounds not stated in the notice of the present motion.

In addition, the California Rules of Court provide that “no opening or responding memorandum may exceed 15 pages.” (Cal. Rules of Court, rule 3.1113(d).) The opening memorandum filed in support of plaintiff’s motion is 21 pages, which exceeds the page limit by 6 pages. Though court rules permit a party to apply to the court ex parte for permission to file a longer memorandum (see Cal. Rules of Court, rule 3.1113(e),) plaintiff has not done so here. Moreover, under California Rules of Court, rule 3.1113(g), “[a] memorandum that exceeds the page limits of these rules shall be filed and considered in the same manner as a late-filed paper.” California Rules of Court, rule 3.1300(d), permits the court, in its discretion, to refuse to consider a late-filed paper.

The court’s review of the memorandum submitted in support of plaintiff’s motion reflects that the memorandum is written in a font size that is 11.5 points. Under California Rules of Court, rule 2.104, all papers filed with the court “must be prepared using a font size not smaller than 12 points.” In addition, plaintiff cites factual and legal authority using footnotes which are single-spaced. The court’s review of these footnotes shows that they are also prepared in a font size that is smaller than 12 points.

The use of a font size which is smaller than permitted by court rules, together with single-spaced footnotes which are also written in a smaller than permitted font size, causes the opening memorandum to further exceed the 15-page limit under California Rules of Court, rule. 3.1113(d).) For example, footnotes in the opening memorandum occupy approximately 60 lines of single-spaced text. Applying rough calculations and accounting for the use of a font size smaller than 12 points and single-spaced footnotes, the opening memorandum exceeds the page limit by at least an additional 3 pages, resulting in a memorandum that is at least 24 pages in length.

In addition, while the use of footnotes can, in limited circumstances, be useful, the unsparing use of footnotes is counterproductive because it interrupts the flow of the text and is distracting. The use of footnotes may also result in cited authority or significant points being overlooked or ignored. (See, e.g., Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419-420 [addressing the disfavored use of footnotes on appeal for stating contentions or substantive legal argument].) Furthermore, the use of footnotes to cite to relevant authority causes the court to expend more time reviewing the papers than would normally be required, resulting in a waste of scarce judicial resources.

Counsel is reminded of their obligation to comply with statutory requirements and the California Rules of Court. Future failures to comply with applicable statutory and court rules may result in the court exercising its discretion to refuse to consider the papers submitted or the issuance of sanctions to the extent that any violation of applicable rules is without good cause. (See Cal. Rules of Court, rule 2.30(b).) In addition, and for all reasons discussed above, the court prefers that citations to material factual or legal authority be included in the body of the memorandum and not in footnotes. The court requests that counsel note the court’s preference in the future.

In the memorandum, plaintiff requests that the court reconsider the Minute Order under Code of Civil Procedure section 1008. Plaintiff argues that the Minute Order contravenes California contract law with respect to whether the carve out provision within the arbitration agreement requires this matter to proceed in court, and is erroneous. As the opening memorandum clarifies the grounds for the order sought by plaintiff, the court will consider the present motion notwithstanding the procedural deficiencies further discussed above. (Luri, supra, 107 Cal.App.4th at p. 1125.)

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

A motion for reconsideration of an order under section 1008, subdivision (a), must raise new factual allegations or demonstrate a “change in circumstances or law that would call into question the court’s ruling….” (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1338.) “The statute is ‘exclusive and jurisdictional’ and applies ‘to interim and final orders alike.’ [Citation.]” (David S. Karton, a Law Corp. v. Musick, Peeler Garrett LLP (2022) 83 Cal.App.5th 1027, 1048 (Karton).)

In support of the motion, plaintiff submits a declaration in which plaintiff describes the circumstances under which he signed the arbitration agreement and his understanding of its provisions. (Becker Decl., ¶¶ 1-11.) Regarding the paragraph of the arbitration agreement entitled “California PAGA Claims”, which plaintiff argued in his opposition to the arbitration motion includes a “carve out” provision requiring any PAGA action to be brought in court to the extent the waiver of nonindividual PAGA claims within that paragraph is unenforceable, plaintiff states that he understood that paragraph to mean that Launch would lose the right to require arbitration of any PAGA claims that plaintiff might bring against Launch if the paragraph included any illegal terms. (Id. at ¶¶ 7-9.) Plaintiff further asserts that he did not, as a non-lawyer, understand the impact of the remaining terms of the arbitration agreement, that he relied on the subject paragraph and its reference to unenforceable terms to enable him to bring all of his PAGA claims in court, and that if the protection afforded by that paragraph as plaintiff understood it did not exist, he would have opted out of the arbitration agreement. (Id. at ¶¶ 10-11.) Plaintiff also asserts that it would be prejudicial and burdensome for plaintiff to arbitrate his claims before an arbitrator based in the Chicago metropolitan area. (Id. at ¶¶ 12-13.)

Plaintiff also submits the declaration of his counsel, William Hogg (Hogg), who states that when he prepared plaintiff’s opposition to the arbitration motion, the decision in DeMarinis v. Heritage Bank of Commerce (2023) 98 Cal. App. 5th 776 (DeMarinis), cited in the present motion, was “not yet available” in Westlaw’s search engine. (Hogg Decl., ¶ 2.) Hogg further declares that, based on his communications with counsel for Launch which included a concession by Launch’s counsel that the waiver of PAGA nonindividual claims within the “California PAGA Claims” paragraph was unenforceable, as well as the contents of the arbitration motion and what Hogg describes as “preclusive” law on the relevant issues, counsel believed that briefing matters such as unconscionability was “moot”, unnecessary, and would distract the court from the primary issues. (Id. at ¶¶ 4-6.) Hogg further states that, had he known or anticipated that the court would not give a plain reading to the “unambiguous” words used in the “poison pill” (i.e., the “carve out” provision), “attempt to effectively re-write the parties’ agreement to modify the poison pill language in the PAGA paragraph”, or “attempt to remove one of the protections in the agreement afforded to [plaintiff]”, he would have briefed the “side” issue of unconscionability in the opposition to the arbitration motion. (Id. at ¶ 7.)

The declarations of plaintiff and his counsel do not reflect or describe different facts, circumstances, or law warranting a reconsideration of the Minute Order under Code of Civil Procedure section 1008, subdivision (a). For example, the information offered in plaintiff’s declaration, which discuss the signing of and the burden plaintiff would incur to arbitrate his claims under the arbitration agreement, are matters that were known to plaintiff at the time plaintiff prepared the opposition to the arbitration motion. Further, to the extent plaintiff contends that the matters described in his declaration are “new” notwithstanding that these matters relate to information known to plaintiff at the time the opposition was filed, plaintiff has not offered a satisfactory explanation for his failure to provide this information at an earlier time also considering that the issue of unconscionability was raised and briefed in the opening memorandum filed in support of the arbitration motion. (See Arb. Motion at p. 15-19; Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)

Regarding Hogg’s assertion that decision in DeMarinis was not “available” as one of the search results when Hogg prepared the opposition to the arbitration motion (see Hogg Decl., ¶ 2), the written opinion in DeMarinis was filed on December 11, 2023. (DeMarinis, supra, 98 Cal.App.5th 776.) The records of Division Three of the Court of Appeal, First Appellate District, demonstrate that the written opinion in DeMarinis was certified for publication on January 8, 2024. (See; Jan. 8, 2024, Order filed in Court of Appeal Case No. A167091.) Court records in the present action show that the arbitration motion was filed on January 9, 2024, and the opposition to the arbitration motion was filed by plaintiff on February 27, 2024, approximately 7 weeks after the DeMarinis decision was published. Notwithstanding that the decision did not appear in the Westlaw search results obtained by Hogg, this information is not sufficient to demonstrate that the decision in DeMarinis constitutes new or different law.

In addition, the question of whether the arbitration agreement is unconscionable was raised and briefed in the opening memorandum submitted in support of the arbitration motion as further discussed above. Furthermore, because unconscionability is a defense to enforcement of the arbitration agreement at issue here, it was plaintiff’s burden to prove any facts necessary to the defense of unconscionability in his opposition to the arbitration motion. (See, e.g., Code Civ. Proc., § 1281; 9 U.S.C. § 2; OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) Though plaintiff did not respond to the unconscionability arguments raised in the arbitration motion, plaintiff has failed to sufficiently demonstrate why the issue of unconscionability constitutes new or different law.

Plaintiff also contends that the timing of the decision in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 (Viking River), as it relates to the intent of the parties with respect to the waiver of PAGA nonindividual claims and “carve out” provision appearing in the “California PAGA Claims” paragraph further discussed above, was first raised by the Minute Order. As a result, plaintiff argues, he was unable to adequately research or address this issue at the hearing or to brief the opinion in Harper v. Charter Communications, LLC (E.D. Cal. 2022) 626 F.Supp.3d 1148 (Harper) which plaintiff contends is “on point” regarding the manner in which the court should interpret the timing of the decision in Viking River as it relates to the provisions of the “California PAGA Claims” paragraph.

The decisions in Viking River and Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 (Adolph), as they relate to waivers of PAGA claims including the waiver and “carve out” provision within the “California PAGA Claims” paragraph further discussed above, was raised and briefed in the arbitration motion. (See Arb. Motion at pp. 12-15 [citing the decision in Viking River to effectively support Launch’s arguments that the splitting of individual and nonindividual PAGA claims is permissible under the arbitration agreement and that both Viking River and Adolph permit the arbitration of plaintiff’s individual PAGA claims notwithstanding whether the waiver of nonindividual PAGA claims is enforceable].) Plaintiff did not, in his opposition, directly respond to the discussion of Viking River or the points raised in the arbitration motion. However, in his opposition to the arbitration motion, plaintiff relied on the decision in Adolph to argue that the waiver of nonindividual PAGA claims appearing in the “California PAGA Claims” paragraph is unenforceable and that, as a result, the “carve out” provision also contained in that paragraph requires all of plaintiff’s PAGA claims to proceed in court. (See, e.g., Opp. Arb. Motion at p. 3, ll. 10-14.) For these additional reasons, plaintiff has not identified new or different facts, circumstances, or law warranting reconsideration of the Minute Order.

The court further notes that the decision in Harper is dated September 7, 2022, and was available to plaintiff long before the opposition to the arbitration motion was filed. Further, the severability arguments offered in the present motion were also effectively raised in the arbitration motion and in plaintiff’s opposition. (See Arb. Motion at p. 14; Opp. Arb. Motion at p. 4.) For these reasons, the decision in Harper does not constitute new law, nor has plaintiff demonstrated the existence of new or different facts or circumstances with respect to the arguments offered in the present motion.

Similar reasoning and analysis applies to plaintiff’s contention that the decision in Johnson v. Lowe’s Home Centers, LLC (9th Cir. 2024) 93 F.4th 459, which was filed on February 12, 2024, approximately two weeks before plaintiff filed his opposition to the arbitration motion, warrants reconsideration of the Minute Order.

The arguments presently offered by plaintiff with respect to the waiver of PAGA nonindividual claims within the arbitration agreement and the “poison pill” or “carve out” provision which plaintiff contends require his PAGA claims to proceed in court, are not substantively different from the arguments previously presented in the opposition to the arbitration motion. In the present motion, plaintiff effectively contends that the court made an error of law in granting the arbitration motion. However, for all reasons discussed above, plaintiff does not identify any new or different facts, circumstances, or law justifying reconsideration of the Minute Order. Therefore, the court will deny the motion to the extent it requests reconsideration of the Minute Order under Code of Civil Procedure section 1008, subdivision (a). (Karton, supra, 83 Cal.App.5th at p. 1049 [court did not err in denying motion for reconsideration which was based on “error of law” absent new or different facts, circumstances, or law].)

Plaintiff alternatively requests, to the extent the court finds there is an insufficient change in circumstances, facts, or law to warrant reconsideration under Code of Civil Procedure section 1008, that the court exercise its inherent jurisdiction to reconsider the Minute Order and to consider plaintiff’s unconscionability arguments to prevent prejudice to plaintiff and to conform its ruling to principles of California contract law. The additional arguments presented by plaintiff in the motion do not persuade the court that the Minute Order is erroneous. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108; In re Marriage of Spector (2018) 24 Cal.App.5th 201, 214.) For these reasons, the court declines to exercise its inherent authority to reconsider the Minute Order or arguments raised by plaintiff, which could have been presented in the opposition to the arbitration motion, regarding whether the arbitration agreement is unconscionable.

Evidentiary objections:

Launch asserts objection nos. 1 through 12 to the declaration of plaintiff and objection nos. 11 through 16 to the declaration of Hogg. The court will overrule the evidentiary objections of Launch.

Plaintiff asserts objection nos. 1 through 4 to the declaration of Seth Weisburst who is counsel for Launch in this matter. As the matters objected to by plaintiff are not necessary to the court’s determination of the motion, the court declines to rule on the objections of plaintiff.