Fierro v. Landry's Rest. Inc.

• Decision Date: 15 February 2019
• Docket Number: D071904
• Citation: 244 Cal.Rptr.3d 1,32 Cal.App.5th 276
• Parties: Jorge FIERRO et al., Plaintiffs and Appellants, v. LANDRY'S RESTAURANT INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

32 Cal.App.5th 276

244 Cal.Rptr.3d 1

Jorge FIERRO et al., Plaintiffs and Appellants,

v.LANDRY'S RESTAURANT INC., Defendant and Respondent.

D071904

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

Filed February 15, 2019

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 Restaurants, Inc.,¹ seeking remedies for what Fierro alleges to be Landry's Restaurants'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 Restaurants demurred to the complaint on the basis that each of the causes of action is 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 Restaurants had been dismissed for failure to bring the case to trial in five years as required by Code of Civil Procedure² 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

Previously, we filed an opinion reversing the order on the basis that the applicable statutes of limitations on the class claims had been tolled. However, the California Supreme Court granted review and transferred the matter to this court with directions to vacate the opinion and to reconsider the cause in light of the United States Supreme Court's opinion in China Agritech, Inc. v. Resh (2018) ––– U.S. ––––, 138 S.Ct. 1800, 201 L.Ed.2d 123 ( China Agritech )—an opinion issued following the filing of our opinion but before issuance of the remittitur. After vacating our decision, we requested and received supplemental briefing from the parties as to the potential application of China Agritech to the issues presented in this appeal.

China Agritech , supra , ––– U.S. ––––, 138 S.Ct. 1800 holds that, upon denial of class certification, a putative class member may not commence a new class action asserting the same claim, if the statute of limitations on the claim has run. ( Id. at p. ––––, 138 S.Ct. at p. 1804.) The Court reasoned that the " ‘efficiency and economy of litigation’ " which support tolling the statutes of limitations for individual claims during the pendency of the initial class action do not support tolling the statutes of limitations for the class claims . ( Id. at p. ––––, 138 S.Ct. at p. 1806.)

As we explain, the superior court's stated basis for sustaining the demurrer and dismissing the class claims is erroneous. As we further explain, in determining whether the statutes of limitations bar Fierro's class claims, we will conclude that there is no basis on which to apply equitable (or any other form of) tolling. Although that determination will result in at least some of the class's claims being time-barred, on the present record, we cannot say that all of the class's claims are untimely. Thus, we will reverse the order sustaining Fierro's demurrer without leave to amend and remand for further proceedings in which the trial court can decide, on a more developed record, issues related to class certification and/or timeliness of class claims.

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 ( Schifando ).)

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 Restaurants's demurrer. Fierro requested that the trial court judicially notice certain documents, each of which pertains to the Martinez action. Based on Landry's Restaurants's trial court briefing and the register of actions provided in appellant's appendix, however, we learned that Landry's Restaurants 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 Restaurants' November 16, 2016 request that the trial court judicially notice certain documents related to the Martinez action. ( Cal. Rules of Court, 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 Restaurants, Inc.," for Doe 2.

In an October 2008 first amended complaint, Martinez, individually and on behalf of a class of unnamed members, asserted six employment-related 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 putative class representatives and named Joe's Crab Shack, Inc., as the defendant.

In a November 2010 third amended complaint, the court allowed Martinez, Saldana, and Kauffman to add Craig Eriksen and Chanel Rankin-Stephens as named plaintiffs and putative 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. ( 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 the claims in the Martinez action and awarded costs to the three named defendants.⁹ The Martinez plaintiffs (Martinez, Saldana, Eriksen, and Rankin-Stephens) appealed from the judgment of dismissal in October 2016. In August 2018, the Court of Appeal affirmed the dismissal on the basis that the plaintiffs did not bring the case to trial within the statutorily prescribed time period under section 583.310 et seq. ( Martinez v. Landry's Restaurants, Inc. (2018) 26 Cal.App.5th 783, 237 Cal.Rptr.3d 379.)

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 Restaurants "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 claims 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 ... 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."

Fierro alleges that he worked for Landry's Restaurants 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

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