Demurrer (Judge Thierry Patrick Colaw)


Demurrer of Defendant Silverado Stages, Inc. to First Amended Complaint:

The demurrer by Defendant Silverado Stages, Inc. is overruled.
(a) The alleged exempt status of airport shuttle drivers presents a factual question, not appropriate for pleading challenge determination.

The exempt status of airport shuttle drivers is an affirmative defense that defendant bears the burden of proving and which is narrowly-construed against the employer. [See Nordquist v. McGraw-Hill Broadcasting Company (1995) 32 Cal App 4th 555, 562, and Ramirez v. Yosemite Water Company, Inc. (1999) 20 Cal 4th 785, 794-795.]

(b) Responding plaintiff admits that California?s regulations expressly adopt the Federal Motor Carrier Exemption pursuant to Abel v. Southern Shuttle Services, Inc. (11th Cir. 2011) 631 F. 3d 1210, 1216-1217; but here plaintiff argues that any connection to interstate commerce was only? incidental ? where primarily airport workers were shuttled (workers at airport restaurants, security offices, and maintenance offices), not interstate travelers (with few exceptions, such as pilots) ? plaintiff also emphasizing that the Federal Secretary of Transportation has no jurisdiction over wholly-intrastate transportation, pursuant to? Reich v. American Driver Service, Inc. (9th Cir. 1994) 33 F. 3d 1153, 1155, and 49 U.S.C. ? 13501 (B).

(c) In addition plaintiff raises the issue of ?one way intervention? from Fireside Bank.

Pursuant to Fireside Bank v. Superior Court (2007) 40 Cal. 4th 1069, 1081 ? the court cannot make a determination on issues of merit of the action prior to [deciding] class certification. See Rutter California Practice Guide Civil Procedure Before Trial, the Rutter Group? 14:94 ?Postponing merits rulings until all parties are bound [i.e., opt-outs exercise option to opt-out] avoids so-called ?one-way intervention? whereby not-yet-bound absent plaintiffs may elect to stay in the class after favorable merit rulings but opt-out after unfavorable ones.
This is yet another reason to wait for factual determinations before deciding this issue. The parties are reminded that certification is a procedural device for handling multiple similar claims. [See Kaufman v. ACS Systems, Inc (2003) 110 Cal App 4th 886, 923.]

(d) The Reply papers argue that more than a de minimis number of shuttled individuals are passengers or flight attendants travelling out-of-state or even internationally, essentially disputing the Opposition?s characterization of shuttled individuals, and framing a factual dispute far outside the face of the subject pleading (this ruling on a pleading challenge is without prejudice to a future ruling on that factual dispute).

Allegations of a pleading must be liberally construed, with a view to substantial justice between the parties pursuant to C.C.P.? ? 452.
Plaintiff shall give Notice.