Case Number: BC529793??? Hearing Date: August 23, 2016??? Dept: 58
JUDGE JOHN P. DOYLE
DEPARTMENT 58
________________________________________
Hearing Date: Tuesday, August 23, 2016
Calendar No.: 7
Case Name: Diaz, et al. v. Rideshare Port Management LLC, et al.
Case No.: BC529793 (r/t BC432509)
Motion: Motions for Summary Judgment/Adjudication
Moving Party: Defendants Rideshare Airport Management LLC, Airport Transportation Associates; Airflyer Transport Associates; American Business Alliance; Garcha Family Trust, Prime Time Shuttle Inc., Prime Executive Cars LLC, First Class Transporation Svc LLC, Red Vans Management Services Inc., United Associations, Rattan Joea, John B. Ramirez, Prminder Joea, and Johnny Rhondo
Responding Party: Plaintiffs Jose Diaz and Juan Martinez
Tentative Ruling: Motions are denied.
I. Background
On 12/9/13, Plaintiffs Jose Diaz, Alex Likhterman, Juan Martinez, Howard Miller, and Gary Oganesian filed this action (BC529793) against various defendants arising out of their services as shared ride shuttle van drivers. Miller and Oganesian allege that they were misclassified as independent contractors (Complaint ?? 35-36) and bring the following causes of action: (1) failure to indemnify and illegal wage deductions, (2) failure to pay regular wages, (3) failure to pay overtime wages, (4) failure to provide meal breaks, (5) waiting time penalties, (6) violation of Labor Code ? 226, (7) violation of Labor Code ? 221, (8) violation of Labor Code ? 1198, (9) breach of contract, and (10) accounting. Plaintiffs allege that they were fraudulently overcharged for auto liability insurance (Complaint ?? 114-116) for which payment was deducted weekly from Plaintiffs? wages (id. ? 127) and bring the following causes of action: (11) fraud, (12) embezzlement by fraud, (13) conversion, and (14) unjust enrichment. Plaintiffs? 15th COA for violation of Bus. & Prof. Code ? 17200 is based on both the alleged fraudulent overcharges and Miller and Oganesian?s claims concerning misclassification (Complaint ?? 155-159). On 11/14/14, this action was assigned to this Court.
On 7/28/14, this action was ordered related to BC432509 which had been consolidated with BC437620, a case filed by Diaz which asserted misclassification claims. On 1/5/12, judgment was entered against the plaintiffs in the consolidated cases after the Court granted summary judgment and concluded that the plaintiffs were independent contractors. The Court of Appeal affirmed the judgment on 11/14/13 and remittitur issued on 1/15/14.
On 4/20/15, the Court granted a motion to compel arbitration as to the claims by Likhterman, Miller, and Oganesian. Trial is set for 2/14/17; FSC for 2/2/17; status conference and mediation setting for 8/23/16.
II. Motions for Summary Judgment/Adjudication
Defendants move for summary judgment/adjudication as to Diaz and Martinez? claims, the 11th through 15th COAs. Except as noted, the motions are substantively identical. The Court denies the motions as Defendants fail to carry their initial burden to negate Diaz and Martinez? claims. See generally Archdale v. American Int?l Specialty Lines Inc. Co. (2007) 154 Cal.App.4th 449, 462.
1. Misrepresentation or Concealment Claim
Defendants? motions and separate statements are addressed to statements made that required drivers to make a down payment which included payment for auto liability insurance (Defs.? Separate Statement [?DSS?] (Diaz) ? 40; DSS (Martinez) ? 41); that Diaz and Martinez testified to not knowing of specific persons who used insurance payments for their own benefit (DSS (Diaz) ? 5; DSS (Martinerz) ? 54); and that Diaz and Martinez failed to provide a specific calculation or amount of damages (DSS (Diaz) ?? 57-58; DSS (Martinez) ?? 56-57). However, Diaz and Martinez? claims are not based on the fact that they had to obtain or pay for insurance, but instead are directed at the alleged fraudulent overcharges (Complaint ?? 114-116). This is a concealment claim (see generally Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868) because even though Diaz and Martinez allege that Defendants misrepresented the true cost of insurance, the claim is fundamentally based on concealment that the true cost was lower than what was actually charged to Diaz and Martinez. Therefore, Defendants? argument — that this is a different factual fraud claim than alleged (see generally FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.2d 367, 381; Song X. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182 (?The issues to be addressed on the motion are framed by the pleadings.?)) — is incorrect.
2. Alleged Insurance Overcharges
Though Defendants submit evidence concerning what was charged for the insurance premiums (Rattan Decl. 32-36), Defendants? motions and separate statements do not focus on this fact and instead only assert generally that drivers reimburse the payments made on their behalf by Defendants (see DSS ? 37). The Court disregards Defendants? evidence on the amounts of the insurance premiums because this information was not referenced in the separate statement, is essentially buried in voluminous papers, and has not been adequately called to the Court?s attention. Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1134.
Additionally, even if Defendants? evidence concerning the amounts charged were considered, Defendants fail to carry their initial burden establishing that the amounts charged for insurance for Diaz and Martinez were correct. There is no evidence concerning what Diaz and Martinez were actually charged. The Court notes that Defendants submit that Diaz testified that he does not remember having any knowledge of any ?extra money? from the insurance premiums collected (DSS (Diaz) ? 54) but this is not a factually devoid response (see generally Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580-81). Similarly, that Diaz and Martinez fail to provide a specific calculation or amount of damages does not suggest that Diaz and Martinez do not have any damages. Finally, Defendants? statute of limitations argument addressed to the conversion claim (see CCP ? 338(c)) is based only on when Diaz and Martinez ceased working for Defendants. No evidence has been submitted as to as to when Diaz and Martinez discovered facts or obtained sufficient knowledge to trigger the running of the statute of limitations (see, e.g., Jolly v. Eli Lilly (1988) 44 Cal.3d 1103, 1110) especially in light of the fraudulent concealment claim.
3. Airport Transportation Associates LLC (?ATA?)
ATA separately argues that certificates of cancellation and dissolution were filed in 2012 (RJN Exs. F), arguing that this mandates its dismissal because it cannot sue or be sued. See, e.g., Dreamstone Entertainment Ltd. v. Maysalward Inc. (C.D. Cal 2014) 2014 WL 4181026 *1 n.1 (citing Fox Hollow of Turlock Owner?s Ass?n v. Sinclair (E.D. Cal. 2013) 2013 WL 1628260 *4). But the cases cited did not address Corp. Code ? 17707.07, which ATA also fails to address. Though Diaz and Martinez failed to respond to this separate argument, ATA has not established as a matter of law that it is entitled to dismissal.
4. Ruling
The motions for summary judgment/adjudication are denied. All evidentiary objections submitted by the parties are overruled.