Fierro v. Landry's Rest. Inc.

• Decision Date: 26 April 2018
• Docket Number: D071904
• Citation: 232 Cal.Rptr.3d 651,23 Cal.App.5th 325
• Court: California Court of Appeals Court of Appeals
• Parties: Jorge FIERRO et al., Plaintiffs and Appellants, v. LANDRY'S RESTAURANT INC., Defendants and Respondents.

23 Cal.App.5th 325

232 Cal.Rptr.3d 651

Jorge FIERRO et al., Plaintiffs and Appellants,

v.LANDRY'S RESTAURANT INC., Defendants and Respondents.

D071904

Court of Appeal, Fourth District, Division 1, California.

Filed April 26, 2018

Righetti Glugoski, Matthew Righetti and John J. Glugoski, San Francisco, for Plaintiffs and Appellants.

Law Offices of Mary E. Lynch, Mary E. Lynch, Irvine; Sheppard, Mullin, Richter & Hampton, Ryan D. McCortney, and Jason M. Guyser, Costa Mesa, for Defendants and Respondents.

IRION, J.

Plaintiff Jorge Fierro filed the underlying action against defendant Landry's Restaurant Inc.,¹ seeking remedies for what Fierro alleges to be Landry's' violations of specified California labor laws and wage orders. Fierro asserts claims on behalf of himself and on behalf of a class of individuals that he alleges is similarly situated. Landry's demurred to the complaint on the basis that each of the causes of action was barred by the applicable statute of limitations.

As to Fierro's individual claims, the trial court overruled the demurrer, concluding that the statute of limitations defense did not appear affirmatively on the face of the complaint. As to the class claims, the trial court sustained the demurrer without leave to amend on the basis that a prior class action with identical class claims against Landry's had been dismissed for failure to bring the case to trial in five years as required by Code of Civil Procedure ² sections 583.310 and 583.360.³ Under the "death knell" doctrine, Fierro appeals from that portion of the order sustaining without leave to amend the demurrer to the class claims.⁴

The trial court erred. As we explain, from the record presented, we do not know the basis of the dismissal of the prior action; and, in any event, because the dismissal of the prior action is not final for purposes of res judicata or collateral estoppel, it cannot form the basis of a defense to the class claims in the present action. As we further explain, because we agree with the trial court that the statute of limitations defense does not appear affirmatively on the face of the complaint, there is no alternative basis on which to affirm the dismissal of the class claims. Accordingly, we will reverse and remand with instructions to enter an order overruling Landry's' demurrer in its entirety.

I.FACTUAL AND PROCEDURAL BACKGROUND⁵

In this appeal following the sustaining of a demurrer, we assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. ( Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569.)

In the present case, without identifying any specific document, the trial court took judicial notice "of the documents pertaining to the matter known as Martinez v. Joe's Crab Shack , L.A. Superior Court Case No. BC377269 [ ( Martinez ) ]." The appellant's appendix contains a request for judicial notice filed by Fierro in support of his opposition to Landry's' demurrer. Fierro requested that the trial court judicially notice certain documents, each of which pertains to the Martinez action. Based on Landry's' trial court briefing and the register of actions provided in appellant's appendix, however, we learned that Landry's also filed a request for judicial notice in support of its demurrer—a document not in the record. Accordingly, we ordered the superior court file and, on our own motion, augmented the record to include Landry's request for judicial notice filed November 16, 2016. ( Cal. Rules of Court, rule 8.155(c), (a).) Landry's also requested that the trial court judicially notice certain documents which pertain to Martinez . ( Rule 8.155(c), (a).)

We take judicial notice of the same Martinez documents that were judicially noticed by the trial court.⁶ ( Evid. Code, § 459, subd. (a).)

A. The Martinez Action⁷

In September 2007, Roberto Martinez filed the Martinez action, seeking to represent a class of salaried managerial employees who worked at Joe's Crab Shack restaurants in California. In three causes of action, Martinez alleged claims for: overtime pay on the basis that class members had been misclassified as exempt employees; and violations of law or regulations related to meal and rest periods and to wage statements. Martinez identified the original defendant as Joe's Crab Shack, Inc., and in a March 2008 amendment substituted Landry's Restaurant, Inc., for Doe 2.

In an October 2008 first amended complaint, Martinez, individually and on behalf of a class of unnamed members, asserted six causes of action against Joe's Crab Shack, Inc.

In March 2010, the Martinez trial court denied without prejudice Martinez's motion for class certification on the ground that Martinez was not an adequate class representative. Martinez did not appeal that order.

On the same day, the court allowed Martinez to file a second amended complaint that named Martinez, Lisa Saldana, and Steven Kauffman as the plaintiffs and class representatives and named Joe's Crab Shack, Inc., as the defendant.

In a November 2010 third amended complaint, the court allowed Craig Eriksen and Chanel Rankin-Stephens to join Martinez, Saldana, and Kauffman as named plaintiffs and class representatives against defendant Joe's Crab Shack, Inc. By the time of the plaintiffs' motion to certify the class in June 2011, Kauffman was no longer a plaintiff, and the defendants included Crab Addison, Inc., Ignite Restaurant Group, Inc., and Landry's Restaurants, Inc.⁸

Martinez, Saldana, Eriksen, and Rankin-Stephens moved to certify a plaintiff class consisting of " ‘[a]ll persons employed by Defendants in California as a salaried restaurant employee in a Joe's Crab Shack restaurant at any time since September 7, 2003.’ " In May 2012, the Martinez court denied the motion, ruling that the plaintiffs had failed to establish: that their claims were typical of the class; that they could adequately represent the class; that common questions predominated the claims; and that a class action was the superior means of resolving the litigation.

The Martinez plaintiffs appealed, and in November 2014 the Court of Appeal reversed the order denying class certification, in a published opinion, Martinez v. Joe's Crab Shack Holdings (2014) 231 Cal.App.4th 362, 179 Cal.Rptr.3d 867. The appellate court directed that, on remand, the trial court reconsider, consistent with specified authority that classwide relief is the preferred method of resolving wage and hour claims, whether class certification in Martinez would provide a superior method of resolving the plaintiffs' claims. ( Id. at p. 384, 179 Cal.Rptr.3d 867.)

By judgment filed in August 2016, the Martinez court dismissed with prejudice all of the claims in the Martinez action and awarded costs to the three named defendants. We do not know what, if anything, happened to the class claims in Martinez prior to the dismissal.⁹ The Martinezplaintiffs (Martinez, Saldana, Eriksen, and Rankin-Stephens) appealed from the judgment of dismissal in October 2016. Fierro tells us that this appeal is still pending.

B. Fierro's Present Action

Within days of the dismissal of Martinez , Fierro filed the present action on August 29, 2016. Fierro asserts individual and class claims based on the underlying allegation that Landry's "improperly and illegally mis[ ]classified" Fierro and the members of the class "as ‘exempt’ managerial/executive employees when, in fact, they were ‘non-exempt’ non-managerial employees according to California law." According to Fierro, under theories alleged in five causes of action, this misclassification entitles him and the class he seeks to represent to recover unpaid wages and penalties. Fierro defines the alleged class as: "All California based salaried restaurant employees 1) who worked at any time from September 7, 2003 until the date of class certification at any of the restaurants in the State of California owned, operated and/or acquired by defendants." (Sic .)

Fierro alleges that he worked for Landry's as a salaried restaurant employee "within four years prior to the filing of" the Martinez action.¹⁰ As particularly relevant to the issues presented to the trial court and briefed by the parties on appeal, Fierro affirmatively alleges in the complaint:

"The filing of [the Martinez action] on September 7, 2007[,] has tolled the statute of limitations as to [Fierro] and the class he seeks to represent . The class period covered by this Complaint based on the tolling of the statute by [ Martinez ] is September 7, 2003[,] to the present." (Italics added.)

Landry's describes the present action as Fierro's attempt "to revive the same class claims from Martinez covering the exact same class period."

Disagreeing with Fierro's allegation regarding the tolling of the applicable statutes of limitations, Landry's demurred to each cause of action in Fierro's complaint on the basis that each "is barred by the statute of limitations."¹¹ In support, Landry's presented two arguments as to the class claims, both of which it repeats on appeal.

First, Landry's acknowledges that the filing of a class action tolls the running of the applicable statutes of limitations as to the individual claims of all putative class members until class certification is denied—after which time all unnamed class members may either seek to intervene in the surviving individual case or file a new action. Our Supreme Court has summarized this tolling principle as follows: "[U]nder limited circumstances, if class certification is denied, the statute of limitations is tolled from the time of commencement of the suit to the time of denial of certification for all purported members of the class who either make timely motions to intervene in the surviving individual action ( [ American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538, 552-553, 94 S.Ct. 756, 38 L.Ed.2d 713] [ ( American Pipe ) ] ), or...