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Guadalupe Gonzalez, Norma Lopez Juan, Individually and On Behalf of Others Similarly Situated v. Millard Mall Services

March 6, 2012


The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge


Before the Court is Defendant The Millard Group, Inc.'s motion for summary judgment on the ground that it was not the employer of Plaintiffs and the putative class members. Plaintiffs filed an opposition and Defendant filed a reply. The motion is submitted on the papers without oral argument, pursuant to Civil Local Rule 7.1(d)(1). After a review of the briefs, supporting documentation, and applicable law, the Court DENIES Defendant's motion for summary judgment.

Procedural Background

This action was originally filed in the Superior Court of California for the County of San Diego on April 1, 2009. On September 22, 2009, the case was removed to this Court pursuant to the Class Action Fairness Act. (Dkt. No. 1.) On February 11, 2010, Defendants filed a motion for judgment on the pleadings. (Dkt. No. 16.) On April 7, 2010, the Court issued an order denying motion for judgment on the pleadings and granted Plaintiffs' request to file a second amended complaint. (Dkt. No. 28.) A second amended complaint ("SAC") was filed on April 12, 2010.

(Dkt. No. 31.) On May 5, 2010, Defendants filed an answer. (Dkt. No. 36.) On October 29, 2010, Plaintiffs filed a motion to certify class action. (Dkt. No. 48.) On February 4, 2011, Defendant The Millard Group, Inc. filed the instant motion for summary judgment. (Dkt. No. 70.) Plaintiffs filed an opposition on February 18, 2011. (Dkt. No. 74.) On February 25, 2011, Defendant filed a reply. (Dkt. No. 75.) On March 14, 2011, the case was transferred to the undersigned judge. (Dkt. No. 82.) On February 29, 2012, the Court granted in part and denied in part Plaintiffs' motion to certify class action. (Dkt. No. 89.)

Factual Background

Plaintiffs Guadalupe Gonzalez and Norma Lopez Juan brought a class action complaint against Defendants Millard Mall Services, Inc. ("Millard Mall") and The Millard Group, Inc. ("TMGI") (erroneously sued and served as "The Millard Group"). (Dkt. Nos. 31, 36.) Defendants are in the business of providing janitorial services to shopping malls and other commercial facilities. (Dkt. No. 74-9, Jusuf Decl, Ex. 8, Joseph Depo. at 13:11-22.)

Millard Mall employs janitors in 32 states, including California. (Dkt. No. 70-2, Black Decl., Ex. 3, Kwiatowski Depo. at 24:9-23.) Millard Mall is qualified to do business in California, performs janitorial work in California and has around 1,500 employees. (Dkt. No. 70-3, Joseph Decl. ¶ 3.) On the other hand, TMGI is an Illinois company which does business in four to five states in the mid-West and does not employ anyone in California. (Id.)

According to Defendant, Millard Mall is a separate corporate entity from TMGI. (Id. ¶ 4.) Both are merely affiliates or "sister companies" which operate under common ownership along with a number of other companies. (Id. ¶ 4.) Millard Mall, TMGI and other companies are affiliates in a group of companies loosely referred to as "The Millard Group." (Id.) "The Millard Group" is not a formal legal entity but a named used to refer to a group of affiliated companies that are under common ownership." (Id.) Leslie Joseph, Human Resources Manager for TMGI, states that the employment documents state "The Millard Group"; however, that references the group of affiliated companies that operate under common ownership which include Millard Mall, TMGI, Boston Window Cleaning and others. (Id. ¶ 9.) The reference of "The Millard Group" in employment papers, such as the job application, was not to TMGI. (Id.) "The Millard Group" documents were used so they could use one set of hiring documents as a convenience to the Human Resources Department. (Id.)


A. Judicial Estoppel

First, Plaintiffs argue that TMGI is judicially estopped from claiming that it was not an employer of Plaintiffs and the putative class members after admitting that it was in its Notice of Removal. Defendant argues that TMGI is not estopped from showing that it was not Plaintiffs' employer.

Judicial estoppel "generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Pegram v. Herdrich, 530 U.S. 211, 227, n. 8 (2000)). It is an "equitable doctrine invoked by a court at its discretion." Id. at 750. It is "intended to protect the integrity of the judicial process by preventing a litigant from playing fast and loose with the courts." Whaley v. Belleque, 520 F.3d 997, 1002 (9th Cir. 2008).

"In determining whether to apply the doctrine, we typically consider (1) whether a party's later position is 'clearly inconsistent' with its original position; (2) whether the party has successfully persuaded the court of the earlier position, and (3) whether allowing the inconsistent position would allow the party to 'derive an unfair advantage or impose an unfair detriment on the ...

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