1)Defendant Easter Seals Southern California Inc’s Motion for Reconsideration regarding Order on Motion to Strike Portions of Plaintiff’s Second Amended Complaint
2) Status Conference
Defendant asks this court to reconsider its 3/26/18 Minute Order denying Defendant’s motion to strike portions of Plaintiff’s 3rd cause of action for wage statement violation. Defendant argues that the recent decision in Maldonado v. Epsilon Plastics, Inc. mandates an outcome different from the initial ruling.
The Court first notes that it denied the original motion on procedural as well as substantive grounds. Specifically, Defendant failed properly identify the allegation to be stricken from the 3rd cause of action in its notice of motion. The notice identified page 18, lines 4-5 which is not part of the 3rd cause of action.
A similar procedural error dooms this motion for reconsideration. As referenced above, Defendant’s original motion sought to strike page 18, lines 4-5 from the 3rd cause of action but that page and line reference did not appear in the 3rd cause of action. Without any acknowledgement of the earlier error or any explanation for the change, Defendant’s motion for reconsideration corrects the earlier error and identifies page 19, lines 4-5 as the section (an allegation within the 3rd cause of action) to be reconsidered. In addition to the unacknowledged correction, Defendant’s motion for reconsideration asks the Court to “reconsider” striking three sets of allegations which were not included in the original motion to strike and have never previously been addressed by the Court:
page 19, lines 22-23 (“and failing to accurately record all earned wages and other compensation”);
page 19, line 28 (gross wages earned”); and
page 19, line 28 (“net wages earned”).
Defendant’s motion is brought pursuant to CCP § 1008(b) which allows a party to “make a subsequent application for the same order upon new or different facts, circumstances, or law.” Defendant is not making an application for the “same order.” The relief requested in the motion is different than that addressed by the original motion. The motion could be denied on those grounds, alone.
The motion can also be denied on its merits. The reasoning of Maldonado would apply to the portions of the complaint sought to be stricken only if Plaintiff’s 3rd cause of action was based, entirely upon an allegation that the wage statements were inaccurate because they did not reflect premium pay for missed meal and rest breaks. The 3rd cause of action is not so limited. Plaintiff alleges that Defendant “altered time” (¶ 37) and “unlawfully altered timecards and payroll records by artificially and excessively deducting, and/or not accurately recording, time from the hours worked by Plaintiff and fellow members of the Class/aggrieved employees” (¶ 51). The 3rd cause of action is based, in part, on those allegations. Because Plaintiff’s wage statement is not limited to the claimed meal and rest break violations, it would be improper to strike the incorporation paragraph or the allegations specified in this motion for “reconsideration.”
The motion for reconsideration is denied.
Plaintiff to give notice.