Superior Court, State of California



DATE: January 14, 2021 TIME: 9:00 A.M.

In light of the shelter-in-place order due to COVID-19, all appearances MUST be made by Court Call, unless the Court otherwise authorizes. If any party wishes to use a court reporter, the appropriate form (CV-5100) must be submitted to the Court for approval and the reporter must work remotely and cannot be physically present in the courtroom. If the Court permits someone to personally appear for a hearing, that person must observe appropriate social distancing protocols and must wear a face covering, unless the Court authorizes otherwise.

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(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY COUNSEL AND SUBMITTED PER 3.1312(C))

EFFECTIVE JULY 24, 2017, THE COURT WILL NO LONGER PROVIDE OFFICIAL COURT REPORTERS FOR CIVIL TRIALS OR LAW AND MOTION HEARINGS. SEE COURT WEBSITE FOR POLICY AND FORMS.

TROUBLESHOOTING TENTATIVE RULINGS

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|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 | 19CV342764 | Nathaniel Sobayo vs Hien Nguyen et al |The Court issued an Order to Show Cause Why This Case Should Not Be |

| | | |Dismissed for Failure to Comply with Judge Arand’s July 30,2019 Order |

| | | |to Transfer Venue to Contra Costa County Superior Court. Plaintiff |

| | | |submitted an answer and a 78 page “Declaration” in response to the |

| | | |OSC. Besides being rambling and nonsensical, the declaration is |

| | | |procedurally, legally and substantively deficient. However, the Court |

| | | |did review the appellate docket H047498 and it appears plaintiff has |

| | | |filed an appeal relating to Judge Arand’s Order of 10-29-19 denying |

| | | |plaintiff’s request for an extension of time to file a writ of mandate|

| | | |regarding her July 30, 2019 order. That appeal is still active so it |

| | | |appears that it may be premature to dismiss this case. Defendants |

| | | |have not provided the Court any written response to plaintiff’s |

| | | |opposition. The Court will invite brief oral argument on this narrow |

| | | |issue. |

|LINE 2 | 19CV347173 | Audycki v. Stanford Health Care |Click Control Line 2 for Tentative Ruling |

|LINE 3 | 20CV366134 | Kevin Young et al vs Judy Tsai et al |Click Control Line 3 for Tentative Ruling |

|LINE 4 | 20CV367305 | Foresite Capital Management IV, L.P. vs | Foresite’s Special Motion to Strike is continued to March 2, 2021 in |

| | |Hesaam Esfandyarpour, Ph.D. et al |Dept. 2 at 9am. On 1-12-21, the Court discovered that the parties |

| | | |submitted their opposition and replies to this motion along with new |

| | | |motions in the same envelope. The parties must submit oppositions and |

| | | |replies on motions with existing hearing dates in separate envelopes |

| | | |from the new motions so they can be flagged, processed and put into |

| | | |Odyssey by priority triggered by the hearing date. This was not done |

| | | |so the Court did not have time to work this motion up, necessitating a|

| | | |continuance. Also, moving party must file an amended notice of motion|

| | | |once it learns of the hearing date on a particular motion so the Court|

| | | |can be assured proper notice of the actual hearing date was given to |

| | | |opposing party. |

|LINE 5 | 20CV367305 | Foresite Capital Management IV, L.P. vs | Telephonic appearance required to see if there is any opposition to |

| | |Hesaam Esfandyarpour, Ph.D. et al |Foresite Capital Management IV, LP’s Motion to Seal portions of |

| | | |Special Motion to Strike. There was no amended notice filed on this |

| | | |motion so the Court is unsure is opposing parties received notice of |

| | | |this motion. |

|LINE 6 | 17CV310864 | QTV Enterprise, LLC vs Hieu Nguyen |Quang Loung’s Motion to Deem Requests for Admissions Admitted is |

| | | |continued to 2-18-21 in Dept. 2 at 9am. This motion was given a |

| | | |hearing date after it was filed on 10-6-20 so when it was served there|

| | | |was no hearing date set forth on the notice of motion. Moving party |

| | | |did not file an amended notice of motion with the Court proving that |

| | | |opposing party received notice of today’s hearing date. Accordingly,|

| | | |the motion is continued to permit moving party to provide proper |

| | | |notice. |

|LINE 7 | 17CV310864 | QTV Enterprise, LLC vs Hieu Nguyen |Little Saigon Plaza Sacramento, LLC’s Motion to Deem Requests for |

| | | |Admissions Admitted and Sanctions is continued to 2-18-21 in Dept. 2 |

| | | |at 9am. This motion was given a hearing date after it was filed on |

| | | |10-6-20 so when it was served there was no hearing date set forth on |

| | | |the notice of motion. Moving party did not file an amended notice of |

| | | |motion with the Court proving that opposing party received notice of |

| | | |today’s hearing date. Accordingly, the motion is continued to permit|

| | | |moving party to provide proper notice |

|LINE 8 | 17CV310864 | QTV Enterprise, LLC vs Hieu Nguyen |QTV Enterprise LLC’s Motion to Deem Requests for Admissions Admitted |

| | | |is continued to 2-18-21 in Dept. 2 at 9am. This motion was given a |

| | | |hearing date after it was filed on 10-6-20 so when it was served there|

| | | |was no hearing date set forth on the notice of motion. Moving party |

| | | |did not file an amended notice of motion with the Court proving that |

| | | |opposing party received notice of today’s hearing date. Accordingly,|

| | | |the motion is continued to permit moving party to provide proper |

| | | |notice |

|LINE 9 | 19CV350801 | Ronald Patrick vs Ferrari North America, |Counsel to provide status report on issues discussed and agreements |

| | |Inc. et al |reached during the informal discovery conference held January 6, 2021.|

|LINE 10 | 20CV367170 | Jakhongir Baykhurazov vs Friendfinder |Defendant Friendfinder Networks, Inc.’s Motion for Sanctions Pursuant |

| | |Networks, Inc. |to Code of Civil Procedure 128.5 and 128.7 is DENIED. First, the |

| | | |motion is procedurally deficient. Defendant’s moving papers did not |

| | | |contain the date and time of the hearing. The Court realizes that the|

| | | |moving papers were filed without a hearing date under the Emergency |

| | | |Orders but defendant never bothered to file an amended notice of |

| | | |motion once it learned of the hearing date. Galleria Plus, Inc. v. |

| | | |Hanmi Bank (2009) 179 CA4th 535,538. Also, defense counsel does not |

| | | |dispute that the motion that was filed is different than the motion he|

| | | |served on plaintiff’s counsel on August 12, 2020. Second, the Court |

| | | |understands defendant vehemently disagrees with many of the |

| | | |allegations in the complaint, but the way to attack same is by |

| | | |demurrer, motion for judgment on the pleadings or summary judgment |

| | | |motion and those vehicles have not been employed. Instead, defendant |

| | | |filed an answer. It is not sufficient to attach the declaration of |

| | | |Jonathan Buckheit, replete with hearsay, to shortcut the path to |

| | | |judgment, particularly when plaintiff questions his credibility. |

| | | |Plaintiff’s objections to the Buckheit declaration are sustained. The|

| | | |Court cannot conclude plaintiff’s complaint was filed for an improper |

| | | |purpose or is indisputably without merit, factually and legally based |

| | | |on the evidence defendant submitted. Ponce v. Wells Fargo Bank (2018) |

| | | |21 Cal. App.5th 253,260-261. There is no evidence of bad faith at |

| | | |this stage. Campbell v. Cal-Gard Sur. Servs (1998) 62 CA4th 563, 574. |

| | | |The Court declines to award plaintiff sanctions under CCP 128.5 or |

| | | |128.7. |

|LINE 11 | 20PR188607 | In the Matter of Dylan Shyy |Hearing: Compromise of Minor's Claim. The Court needs proof that funds|

| | | |were deposited into a blocked account in the name of Dylan Shyy. |

| | | |Counsel must appear telephonically and update the Court on the status |

| | | |of this issue. |

|LINE 12 | 20PR188607 | In the Matter of Joshua Shyy |Hearing: Compromise of Minor's Claim. The Court needs proof that funds|

| | | |were deposited into a blocked account in the name of Joshua Shyy. |

| | | |Counsel must appear telephonically and update the Court on the status |

| | | |of this issue. |

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Calendar line 2

Case Name: Audycki v. Stanford Health Care

Case No.: 19CV347173 (consolidated with case numbers 19CV360010 and

20CV365879)

This is an action involving the consolidation of three putative class actions for wage and hour claims. On May 1, 2019, plaintiff Lillian Audycki (“Audycki”) filed a class action complaint against defendant Stanford Health Care (“SHC” or “Defendant”), asserting a single cause of action for violation of Labor Code section 226, alleging that Defendant “failed in their affirmative obligation to provide accurate itemized wage statements… [m]ore specifically, whenever Plaintiff was paid shift differential wages, including for night and weekend shift differentials, the hours worked for shift differentials were redundantly listed in the total hours worked section, such that the total hours worked were incorrect.” (Audycki initial complaint, ¶ 30.) “Plaintiff is informed and believes and based thereon alleges that non-exempt employees who were paid any shift differentials received wage statements in the same format, i.e., showing an incorrect total hours worked.” (Id.)

Previously, on January 18, 2019, Michelle Rhyner (“Rhyner”) filed a class action complaint against Defendant, asserting causes of action for: unfair business practices; failure to pay proper wages and overtime compensation in violation of Labor Code sections 203, 204, 510, 1194 and 1198; violation of meal period provisions pursuant to Labor Code sections 226.7 and 512 and IWC Wage Order 5-2001; failure to permit and authorize rest period breaks in violation of Labor Code section 226.7 and IW Wage Order 5-2001; failure to pay on-call or standby time; engaged in a background check without authorization in violation of Civil Code § 1786; permitting employees to work off the clock; recovery of unpaid wages and penalties in violation of Labor Code sections 218, 226, 510, 1194 and 1198; failure to provide meal breaks in violation of Labor Code sections 226.7 and 512; failure to provide rest periods in violation of Labor Code sections 226.7 and 512; failure to pay wages of terminated or resigned employees in violation of Labor Code sections 201-203; failure to pay all wages in violation of Labor Code sections 510(a), 1182.12, 1194(a), 1197, 1198; failure to make proper disclosure in violation of ICRAA, Civil Code § 1786, et seq.; failure to make proper disclosure in violation of CCRAA, Civil Code § 1785, et seq.; and, failure to indemnify employees for necessary expenses and losses.

On December 12, 2019, plaintiff Tawnya Coogan (“Coogan”) filed a class action complaint asserting causes of action for unfair business practices, a failure to provide meal periods in violation of Labor Code §§ 226.7 and 512, a failure to authorize and permit rest breaks in violation of Labor Code section 226.7, a failure to provide accurate itemized wage statements in violation of Labor Code section 226, and a failure to reimburse business expenses. Coogan alleged that: “Defendant failed to provide adequate meal periods to Plaintiff and other putative class members” (Coogan initial class complaint, ¶ 11); “Defendants had a policy and practice of failing to provide putative class members adequate paid rest breaks in violation of Labor Code § 226.7 and IWC Wage Order 5-2001, § 12” (id. at ¶ 12); “Defendants had a policy and practice of violating Labor Code § 226(a) by failing to provide complete and accurate itemized wage statements to Plaintiff and the putative class members in that the wage statements provided di not, among other things, include the total number of hours worked in violation of Labor Code § 226(a)(2)” (id. at ¶ 13); and, “Defendants had a policy and practice of violating Labor Code § 2802 by failing to reimburse Plaintiff and putative class members for necessary expenditures and losses as required by Labor Code § 2802, including the costs of cellular telephones and related cellular telephone service.” (Id. at ¶ 14.) The class was defined as “[a]ll hourly employees employed in California at any time during the four-year period preceding the filing of this Complaint and up to the present and until compliance with the law, inclusive, who were entitled to but were not provided with proper meal periods… were entitled to but were not authorized and permitted to take paid duty-free, off-site rest breaks… did not receive complete and accurate wage statements; and… were not fully reimbursed for necessary expenditures and losses as required by Labor Code § 2802, including the costs of cellular telephones and cellular telephone service.” (Coogan initial class complaint, ¶ 15.) On March 5, 2020, Coogan filed a first amended class action complaint.

On March 30, 2020, plaintiff Joseph Ferlatte (“Ferlatte”) filed a class action complaint, asserting causes of action against Defendant for violation of Labor Code section 201-203, and violation of Labor Code section 226(a). Ferlatte alleged that: “Defendants violated Labor Code § 246 by failing to pay sick pay at the regular rate of pay… [as] Plaintiff and Class Members routinely earned non-discretionary incentive wages such as shift differential wages and thus increasing their regular rate of pay… [h]owever, when sick pay was paid, it was paid at their base rate of pay rather than the regular rate of pay, as required under Labor Code § 246”; and “Defendants violated Labor Code § 226(a)(9) by, among other actions, failing to list the correct rate of pay when Plaintiff was paid sick pay wages and shift differential wages covering the same period.” (Ferlatte initial class complaint, ¶¶ 31, 34.) On June, 3, 2020, Ferlatte filed a first amended complaint to add a PAGA cause of action.

Also on March 30, 2020, Defendant filed a notice of related case, identifying the Coogan case, and the Rhyner case as related to the Audycki case. The notice states that the Coogan action and the Audycki action “are both putative class actions against Stanford Health Care… [b]oth focus on alleged violations of Labor Code § 226 related to a claimed failure to demonstrate total hours worked on paystubs… Coogan also included additional wage and hour claims, and claim under Cal. Bus. & Prof. Code §§ 17200 et seq. … [b]oth complaints seek to bring claims pursuant to the Private Attorneys General Act… [b]oth cases purport to cover a time period dating back to 2015.” (See Def.’s notice of related case, attachment 1h.) As to the Audycki and Rhyner cases, it states that they “are both putative class actions against Stanford Health Care… [w]hile Audycki focuses on alleged violations of Labor Code § 226 related to a claimed failure to demonstrate total hours worked on paystubs, and Rhyner focuses primarily on a number of wage and hour claims and claims under Cal. Bus. & Prof. Code §§ 17200 et seq., a third putative class action filed against Stanford Health Care… Coogan—brings several similar wage and hour claims and clams under Cal. Bus. & Prof. Code §§ 17200 et seq. (like in Rhyner) as well as claims based on alleged violations of Labor Code § 226 related to a claimed failure to demonstrate total hours worked on paystubs (like Audycki). (Id., attachment 2h.) On April 30, 2020, Audycki filed an objection to notice of the related case. On May 4, 2020, Defendant filed a second notice of related case, identifying the Coogan, Rhyner and Ferlatte cases as related to the Audycki case. On May 5, 2020, Audycki filed an amended objection to the notice of the related case. There, Audycki stated that “the Audycki, Rhyner and Coogan actions are not related.” (Pl.’s amended objection to notice of related cases, p.4:14.) “Specifically, Audycki is limited to a stand-alone violation of Labor Code § 226.” (Id. at p.4:14-15.) “Rhyner does not even allege any claims under Labor Code § 226.” (Id. at p.4:15-16.) “Further, the Plaintiffs in each of the actions are also different, and thus, the parties involved are completely different.” (Id. at p.4:16-17.) Thus, there is no overlap whatsoever between Rhyner and Audycki as the two cases do not involve the same parties, similar claims, same transactions/events, nor do the cases involve any similar facts or questions of law.” (Id. at p.4:17-19.) On June 16, 2020, Rhyner dismissed her action.

On August 27, 2020, Audycki, Coogan, Ferlatte and Defendant stipulated to consolidate the Coogan and Ferlatte actions into the Audycki action, and Audycki, Coogan and Ferlatte also filed the consolidated class and representative action complaint. The consolidated complaint alleges five classes:

1) “All of Defendant’s past and present non-exempt California employees who worked for Defendant and was paid any shift differential wages, including without limitation, night and/or weekend shift differentials, such as ‘WKND NU,’ at any time from May 1, 2018, through the present (‘WAGE STATEMENT CLASS’)” (consolidated complaint, ¶ 17, subpara. (a));

2) “All non-exempt California employees who were paid non-discretionary incentive wages including, but not limited to, shift differential wages and sick pay in the same workweek from Defendant and whose employment ended, either voluntarily or involuntarily, at any time during the period of time from May 1, 2016, through the present (the ‘Sick Pay Class’)” (consolidated complaint, ¶ 17, subpara. (b));

3) “All of Defendant’s past and present non-exempt non-union California employees who worked one shift of more than 5 hours for Defendant at any time from May 1, 2015, through the present (‘MEAL PERIOD CLASS’)” (consolidated complaint, ¶ 17, subpara. (c));

4) “All of Defendant’s past and present non-exempt non-union California employees who worked one shift of 3.5 hours or more for Defendant at any time from May 1, 2015, through the present (‘REST PERIOD CLASS’)” (consolidated complaint, ¶ 17, subpara. (d)); and,

5) “All of Defendant’s past and present California employees who were required to use their personal cellular phones and/or cellular phone service while working for Defendant at any time from May 1, 2015, through the present (‘EXPENSE CLASS’).” (Consolidated complaint, ¶ 17, subpara. (e).)

Defendant moves to strike the time periods from paragraph 17, subparagraphs (b)-(e), asserting that “Plaintiffs have attempted to extend the four class periods first alleged in the Coogan and Ferlatte complaints, so that they would begin to accrue based on the filing date of the Audycki complaint, even though these classes are not based on the facts and injury alleged in Audycki.” (Def.’s memorandum of points and authorities in support of motion to strike (“Def.’s memo”), p.12:6-8.) Defendant argues that: the relation back doctrine is based on the amendment of a single complaint, not on consolidation; even if the relation back doctrine could potentially apply to the consolidation of complaints, it only allows amendments if the amendments rest on the same facts and injuries as the original complaint, and here, the alleged facts and injuries are different; and, this extension of these class periods is highly prejudicial to Defendant.

In opposition, plaintiffs Audycki, Coogan, Ferlatte and the Class argue that the statute of limitations for the claims alleged by the first filed Rhyner case are tolled from the filing of the Rhyner case, and the relation back doctrine allows for the class period as pled.

Plaintiffs fail to address argument regarding consolidation and the relation back doctrine.

Plaintiffs assert that the relation back doctrine applies to the consolidated complaint, citing Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, and Goldman v. Wilsey Foods (1989) 216 Cal.App.3d 1085. Amaral, supra, stated that: “amendments alleging a new theory of liability against the defendant have been found to relate back to the original complaint, so long as the new cause of action is based on the same set facts previously alleged.” (Amaral, supra, 163 Cal.App.4th at pp. 1199-1200.) Similarly, Goldman, supra, stated that “[t]he ‘relation back’ doctrine focuses on factual similarity rather than rights or obligations arising from the facts, and permits added causes of action to relate back to the initial complaint so long as they arise factually from the same injury.” (Goldman, supra, 216 Cal.App.3d at p.1094 (also stating that “[t]he statute of limitations does not bar an amended complaint alleging new causes of action if it rests on the same facts as the original complaint and refers to the same accident and same injuries as the original complaint”).) Both Amaral and Goldman involved causes of action in amended complaints relating back to the initial complaint, not a consolidated complaint.

As Defendant argues, “[a] consolidation of actions does not affect the rights of the parties.” (Estate of Baker (1982) 131 Cal.App.3d 471, 485 (also stating that “[t]he purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions”); see also Wouldridge v. Burns (1968) 265 Cal.App.2d 82, 86 (stating same).) “When actions are consolidated, as here, no merger of the action results; each action retains its separate identity and no increase, diminution, or change in the litigants’ rights can occur.” (Mueller v. J. C. Penney Co. (1985) 173 Cal.App.3d 713, 722.)

Plaintiffs neither cite to any case supporting the application of the relation back doctrine to a consolidated complaint, nor provide any argument differentiating amendment from consolidation. (See Pls.’ opposition to motion to strike (“Opposition”), pp.10:20-27, 11:1-16 (arguing that “the relation back doctrine allows for the class period as pled… [because] if an amendment is sought after a statute of limitation has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general facts”).) Plaintiffs additionally argue that “Defendant’s Notice of Related cases clearly assert that the cases are related and based on the same general set of facts”; however, again, this fails to address whether the relation back doctrine applies to a consolidated complaint. The Court is not persuaded that the doctrine applies here. (See Hoffman v. Blattner Energy, Inc. (C.D.Cal. 2016) 315 F.R.D. 324, 335 (stating that “[t]he practical effect of following Hoffman’s position is that any time there are successive putative class actions filed anywhere in the state or country, no matter how long ago, the parties in the later filed action would be able to piggyback on the filing date of the earliest action—even if no class certification motion was ever filed or ruled upon—for the purpose of expanding the damages period…. The Court is aware of no case authority supporting this proposition”); see also In re Bausch & Lomb Secs. Litig. (W.D.N.Y. 1996) 941 F.Supp. 1352, 1365 (stating that “[t]he limitations period as set forth by the Supreme Court in Lampf ‘would be rendered meaningless’ if a plaintiff could ‘effectively benefit from the equitable tolling doctrine by piggybacking his action which, if tried separately, would be clearly barred, on a timely one through consolidation”), quoting Morin v. Trupin (S.D.N.Y. 1991) 778 F.Supp. 711, 734; see also Cervantes v. Zimmerman (S.D.Cal. Mar. 12, 2019, No. 17-cv-1230-BAS-NLS) 2019 U.S.Dist.LEXIS 39789, at *52 (stating that “relation back under Rule 15(c) does not apply to consolidated cases”); see also Twaddle v. Diem (6th Cir. 2006) 200 F.App'x 435, 438, fn. 4 (stating that “[c]onsolidation would not raise the prospect of relation back because consolidation does not merge the suits into a single action, change the rights of the parties, or make parties in one suit parties in the other”); see also Johnson v. Manhattan R. Co. (1933) 289 U.S. 479, 496-497 (stating that “consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another”); see also Bailey v. Northern Indiana Public Service Co. (7th Cir. 1990) 910 F.2d 406, 413(stating that “Rule 15(c), by its terms, only applies to amended pleadings in the same action as the original, timely pleading… [b]ecause the simulator claim was not contained in an amended pleading in Suit 1 but in a second, separate complaint, Rule 15(c) is inapplicable… [n]either the fact that Suit 2 claimed retaliation for the filing of Suit 1, nor the fact that the two suits (or at least portions thereof) were consolidated for trial, makes Suit 2 an ‘amendment’ to Suit 1”); see also Bamberg v. SG Cowen (D.Mass. 2002) 236 F.Supp.2d 79, 87 (stating that “a consolidation of pending cases for case management purposes is not tantamount to an amendment of a single pending case under Fed. R. Civ. P. 15(c)); see also In re ARM Fin. Group, Inc. Sec. Litig. (W.D.Ky. July 18, 2002, CIVIL ACTION NO. 3:99CV-539-H) 2002 U.S.Dist.LEXIS 13451, at *16 (stating that “consolidation is not a tool for undercutting the public policy purposes behind the limitations period established in Lampf”).)

American Pipe tolling and Falk v. Children’s Hospital Los Angeles

Plaintiffs also assert that pursuant to Falk v. Children’s Hospital Los Angeles (2015) 237 Cal.App.4th 1454, the statute of limitations for the claims alleged in the Rhyner action are tolled based on the filing of the Rhyner action. In Falk, supra, the Second District addressed American Pipe tolling in the situation in which “subsequent class actions seek[] the benefit of tolling based on a prior class action” and “[t]he valid concern [that] ‘stacking’ or ‘piggybacking’ class actions (as opposed to individual actions) could allow a limitations period to run indefinitely.” (Falk, supra, 237 Cal.App.4th at p.1470.) Ultimately, the Falk court stated that “the Ninth Circuit has allowed ‘piggybacking’ of class actions under certain circumstances” and determined that “Falk may file a successive class action.” (Id.)

However, three years later, the United States Supreme Court noted that “American Pipe and Crown, Cork addressed only putative class members who wish to sue individually after a class-certification denial” and not successive class actions. (China Agritech, Inc. v. Resh (2018) ___U.S.___ [138 S.Ct. 1800, 201 L.Ed.2d 123].) The Supreme Court stated:

Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations? Our answer is no. American Pipe tolls the statute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.

…

American Pipe and Crown, Cork addressed only putative class members who wish to sue individually after a class-certification denial….

…

We hold that American Pipe does not permit a plaintiff who waits out the statute of limitations to piggyback on an earlier, timely filed class action. The “efficiency and economy of litigation” that support tolling of individual claims, American Pipe, 414 U. S., at 553, 94 S. Ct. 756, 38 L. Ed. 2d 713, do not support maintenance of untimely successive class actions; any additional class filings should be made early on, soon after the commencement of the first action seeking class certification.

…

The watchwords of American Pipe are efficiency and economy of litigation, a principal purpose of Rule 23 as well. Extending American Pipe tolling to successive class actions does not serve that purpose.

(Id. at pp. 1804, 1806, 1811.)

Subsequently, in Montoya v. Ford Motor Co. (2020) 46 Cal.App.5th 493, the Fourth District stated that after China Agritech, it was clear that Falk was no longer a correct statement of the law:

We attempt here to limn the borders of a rule recently promulgated by the United States Supreme Court in China Agritech, Inc. v. Resh [citation]…. We conclude the proper application of the rule of that case dictates that multiple tolling periods cannot be “stacked” here to extend a statute of limitations….

Montoya’s response to the issue of successive class action tolling—sometimes called “stacking”—is twofold. First, he relies on two cases which, like China Agritech, involved a successor class action. (See Falk v. Children's Hospital Los Angeles (2015) 237 Cal.App.4th 1454 [188 Cal. Rptr. 3d 686] (Falk) [allowing second class action tolling for later class action] and Fierro v. Landry's Restaurant Inc. (Fierro) (2019) 32 Cal.App.5th 276 [244 Cal. Rptr. 3d 1] [refusing to follow Falk and not allowing second class action tolling for later class action].) But the only takeaway we can derive from the Falk-Fierro duet is that after China Agritech the idea of tolling during a second class action is unviable and that Falk would have reached the same conclusion had it the benefit of China Agritech in its analysis. (See Fierro, supra, 32 Cal.App.5th at p. 297 [to the same point].)

(Montoya, supra, 46 Cal.App.5th at pp.494, 503.)

The Court agrees with the Montoya court that, post-China Agritech, stacking the tolling periods on the since-dismissed Rhyner action is not viable.[1]

Accordingly, Defendant’s motion to strike is GRANTED in its entirety with 10 days leave to amend.

The following is hereby stricken from the consolidated class action complaint:

• The phrase “at any time during the period of time from May 1, 2016, through the present” from paragraph 17, subparagraph (b);

• The phrase “at any time during the period of time from May 1, 2015, through the present” from paragraph 17, subparagraph (c);

• The phrase “at any time during the period of time from May 1, 2015, through the present” from paragraph 17, subparagraph (d); and,

• The phrase “at any time during the period of time from May 1, 2015, through the present” from paragraph 17, subparagraph (e).

The Court will prepare the Order.

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Calendar line 3

Case Name: Young, et al. v. Tsai, et al.

Case No.: 20CV366134

This is an action for legal malpractice. In 2019, plaintiff Kevin Young (“Young”), the owner of plaintiff corporation ABC Wholesale, Inc. (“ABC”) (collectively with Young, “Plaintiffs”), contacted defendants Judy Chi-Dee-Tsai and the Law Office of Judy Tsai (collectively, “Defendants”), the attorney for ABC, regarding the sale of ABC. (See complaint, ¶¶ 9-10.) Defendants agreed to represent ABC as it had previously and suggested Bay Area Seafood (“BAS”) as a potential buyer. (See complaint, ¶ 10.) Throughout 2019, Young consulted with Defendants a number of times, regarding the sale of ABC. (See complaint, ¶ 11.) Young reached out to other potential buyers and sought Defendants’ advice, who dissuaded him from entering into an agreement with a Chinese distribution company, and instead recommended that he sell ABC to BAS. (See complaint, ¶¶ 11-12.) Defendants assured Plaintiffs that BAS had ten times the sales volume of ABC and would easily be able to organize the merger and fulfill their obligations pursuant to a merger agreement, and Plaintiffs followed Defendants’ advice and pursued the merger agreement with BAS. (See complaint, ¶ 13.) Defendants assisted in the negotiations with the buyers and advised Plaintiffs in regards to the handling and terms of the sale and Defendants prepared the merger agreement and sales representative agreement. (See complaint, ¶ 14.)

Based on Defendants’ advice and counsel, Plaintiffs entered into the agreement upon the terms Defendants recommended, and on May 1, 2019, the agreement was signed by all parties at Defendants’ office. (See complaint, ¶¶ 15-16.) However, after May 1, 2019, Young began to experience problems with BAS’ compliance, and Young expressed concerns about the merger and representative agreements working out, but Defendants dissuaded him from taking any action. (See complaint, ¶ 17.) Plaintiffs discovered that BAS: did not have capacity and resources to sell food products to their clients as Defendants indicated, returned inventory that it was to purchase, and refused to provide the promised accounting of commissions to Young. (See complaint, ¶ 18.)

In June 2019, Young again sought advice regarding BAS’ lack of full compliance with the agreements relating to the sale of ABC; Defendants stated that they could not advise him and that he should find another lawyer. (See complaint, ¶ 19.) In July 2019, BAS, contrary to Defendants’ assurances, failed to fulfill its obligations in the agreement, and on July 29, 2019, Young retained counsel to address the breach of the merger agreement. (See complaint, ¶¶ 20-21.) Defendants refused to provide copies of the files related to the transaction and sought to dissuade Plaintiffs from pursuing their rights. (See complaint, ¶ 22.) Plaintiffs learned that BAS had other problems and breaches in its efforts to merge with other parties and that Defendants were aware of these problems and had actually represented BAS in one of the failed mergers—facts that were not disclosed to Plaintiffs. (See complaint, ¶ 23.) When Plaintiffs later requested copies of the file from Defendants relating to the transaction with BAS, Defendants claimed that she did not have a file and that her clients, BAS, had all the documents. (See complaint, ¶ 25.) Defendants did not disclose that: they were representing BAS; that they had conflicts in representing/advising both sides of the transactions; and, they did not secure each party-participant’s informed consent to such conflicted representation, in violation of California Rule of Professional Conduct 1.7. (See complaint, ¶¶ 10, 13-14, 26.) As a result of Defendants’ breaches of duty, Plaintiffs sustained damages regarding the transaction. (See complaint, ¶ 27.)

On April 20, 2020, Plaintiffs filed a complaint against Defendants, asserting causes of action for: professional negligence; breach of fiduciary duty; and, breach of contract. Defendants demur to the complaint.

Defendants request judicial notice of a docket in an Alameda Superior Court case, ABC Wholesale, Inc. and Kevin Young v. Bay Area Seafood Inc. (Alameda Cty. Super. Ct., Case No. RG19030330). However, judicial notice “is always confined to those matters which are relevant to the issue at hand.” (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301; see also Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (stating same); see also Golden Gate Land Holdings LLC v. East Bay Regional Park Dist. (2013) 215 Cal.App.4th 353, 366 (stating that “[o]nly relevant evidence is admissible by judicial notice”).) Here, the docket of the Alameda County case is not relevant to the alleged malpractice. Defendants’ request for judicial notice is DENIED.

“The elements of a cause of action for legal malpractice are (1) the attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages.” (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1528.) Citing Barnard v. Langer (2003) 109 Cal.App.4th 1453, Defendants demur to the complaint, asserting that the underlying litigation is still pending and thus Plaintiffs cannot demonstrate “that the plaintiff would have obtained a better result in the underlying case if the attorney had conformed to the standard of practice.” (Defs.’ memorandum of points and authorities in support of demurrer, p.3:18-24.) However, the Alameda County case is not the subject of this action; rather, it is the transaction between the parties. Moreover, Barnard v. Langer involved a motion for nonsuit in which the plaintiff did not prove with legal certainty an amount of damages. (See Bernard, supra, 109 Cal.App.4th at pp.1461-1463 (noting that “Barnard’s offer of proof was woefully inadequate and was little more than a wish list of damages, unsupported by evidence”).) Here, on demurrer, “the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341, quoting Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) Defendants’ argument is fundamentally flawed. The demurrer to the complaint is OVERRULED.

The Court will prepare the Order.

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[1] Defendant also argues that the Falk decision is distinguishable and that Plaintiffs ignore significant differences between the earlier and later claims. (See Def.’s reply brief, pp.6:19-26, 7:1-28, 8:1-19.) However, as the Court agrees that, in light of China Agritech and Montoya, Falk is no longer viable, the Court need not address this argument.

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