Present: The Honorable CHRISTINA A. SNYDER CATHERINE JEANG LAURA ELIAS N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Proceedings: DEFENDANTS PANDA RESTAURANT GROUP, INC. & PANDA EXPRESS, LLC'S MOTION FOR RECONSIDERATION OF 5/3/11 ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION (filed 05/23/11)
Plaintiff Patricia Pelton filed the instant suit on September 29,
2010, in the Los Angeles Superior Court against defendants Panda
Restaurant Group, Inc., Panda Express, LLC, and Jason Wong.*fn1
Defendants removed the case to the District Court on November
5, 2010. The complaint alleges claims for (1) harassment (hostile work
environment in violation of the Fair Employment and Housing Act, Cal.
Govt. Code §§ 12940 et seq. ("FEHA")); (2) failure to prevent
harassment/discrimination in violation of section 12940(k) of FEHA;
(3) retaliation in violation of FEHA; (4) violation of civil rights
under Cal. Civil Code §§ 51.7, 52, and 52.1; (5) wrongful termination
in violation of public policy; (6) failure to furnish accurate wage
statements in violation of Cal. Labor Code §§ 226(a); and (7)
penalties under the California Private Attorneys General Act Labor
Code §§ 2698 et seq. Plaintiff brings her sixth claim as a class
action on behalf of herself and other current and former employees of
defendants Panda Restaurant Group, Inc., and Panda Express, LLC
On November 29, 2010, plaintiff filed a motion to certify a class with
respect to her sixth claim and to appoint class counsel.*fn2
On December 6, 2010, defendants opposed plaintiff's motion.
On December 13, 2010, plaintiff filed a reply in support of her
motion. On December 27, 2010, the Court, on its own motion, deferred
ruling on the issue of class certification until discovery on the
relevant issues had been completed, based on the parties' failure to
hold a Rule 26(f) conference or complete discovery prior to briefing
the motion. On March 17, 2011, following discovery on the matter,
Pelton and Panda filed supplemental briefs with respect to plaintiff's
motion. On May 3, 2011, the Court granted plaintiff's motion for class
On May 23, 2011, defendants filed the instant motion for reconsideration of the Court's May 3, 2011 order. On May 31, 2011, plaintiff filed an opposition to defendants' motion. On June 6, 2011, defendants filed a reply in support of their motion. Having carefully considered the parties' arguments, the Court finds and concludes as follows.
Local Rule 7-18 sets forth the bases upon which this Court may reconsider "the decision on any motion:"
A motion for reconsideration of the decision on any motion may be made only on the grounds of: (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion.
In their motion to reconsider, defendants object primarily to the Court's finding that the civil penalties outlined in section 2699(f) are applicable here with respect to the alleged violations of section 226(a). Defendants assert that the Court should reconsider its finding, in light of a "communication by the Labor Commissioner's counsel, writing on behalf of the Labor Commission to the California Court of Appeal" in connection with a non-party's request to modify the decision in Heritage Residential Care, Inc. v. Division of Labor Standards Enforcement, 192 Cal. App. 4th 75 (2011). Mot. at 4. Defendants contend that reconsideration on the basis of this letter is appropriate because the letter indicates that the Labor Commissioner's position is that "section 226.3 covers all violations of 226(a). Section 226.3 is not limited to situations in which the employer fails to provide a pay stub at all, or fails to keep appropriate records." Mot. at 4. Therefore, defendants argue, the Court should determine that plaintiff's remedy is limited to that provided in section 226.3, for which she is not eligible because "Panda's omission of the starting date of the pay period was inadvertent." Id. at 6.
Plaintiff argues that the instant motion is improper because it provides no basis on which the Court should reconsider its ruling. First, plaintiff argues, the letter (the "Hipshman Letter") does not constitute "new facts or law" as contemplated in Local Rule 7-18, as it was available at least one month before defendants filed their supplemental points and authorities in opposition to the class certification motion.*fn3 Opp. at 3-4. Moreover, plaintiff argues, "[t]he California Supreme Court has already held that the DLSE Manual . . . is irrelevant and entitled to no weight in interpreting the statute at issue." Id. Plaintiff further argues that even if the Court were to consider defendants' motion, it should additionally be denied because the Court's statement of the law in its May 3, 2011 order was correct, and consistent with other district court ...