`
`
`CHESA BOUDIN, SBN 284577
`District Attorney of San Francisco
`EVAN H. ACKIRON, SBN 164628
`Assistant Chief District Attorney
`SCOTT M. STILLMAN, SBN 267506
`Assistant District Attorney
`White Collar Crime Division
`350 Rhode Island Street, Suite 400N
`San Francisco, California 94103
`Telephone: (628) 652-4394
`Email: scott.stillman@sfgov.org
`
`Attorneys for the People of the State of California
`
`
`ELECTRONICALLY
`F I L E D
`
`Superior Court of California,
`County of San Francisco
`01/27/2021
`Clerk of the Court
`BY: ERNALYN BURA
`Deputy Clerk
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`CITY AND COUNTY OF SAN FRANCISCO
`UNLIMITED JURISDICTION
`
`
`THE PEOPLE OF THE STATE OF
`CALIFORNIA,
`
`Plaintiff,
`
`v.
`DOORDASH, INC., and DOES 1 through 10,
`inclusive,
`
`Defendants.
`
` CASE NO. CGC-20-584789
`THE PEOPLE’S OPPOSITION TO
`DEFENDANT DOORDASH, INC.’S
`MOTION TO STAY PROCEEDINGS
`Department 304
`Honorable Judge Anne-Christine Massullo
`Hearing Date: February 3, 2021
`Time: 9:15 a.m.
`
`Date Action Filed: June 16, 2020
`Trial Date: None set
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`THE PEOPLE’S OPPOSITION TO DEFENDANT’S MOTION TO STAY
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`CASE NO. CGC-20-584789
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ........................................................................................................................ - 5 -
`
`II. ARGUMENT ................................................................................................................................ - 5 -
` A. The People’s Action Cannot Be Stayed Under the Exclusive Concurrent Jurisdiction
`Doctrine .................................................................................................................................. - 5 -
`
`i. The People of the State of California Are Not a Party to Marciano, a PAGAonly Case - 5 -
`
`ii. The People’s Claims Are Different From the PAGA Claim in Marciano ....................... - 7 -
`
`iii. Policy Objectives Weigh Against Application of the Exclusive Concurrent Jurisdiction
`Doctrine to the People’s Case .......................................................................................... - 8 -
` B. DoorDash Has Set Forth No Other Compelling Reason to Stay This Case Based on
`Marciano ................................................................................................................................ - 8 -
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`III. CONCLUSION ........................................................................................................................... - 10 -
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`TABLE OF AUTHORITIES
`
`Cases
`Arias v. Superior Court (2009) 46 Cal.4th 969 ................................................................................. 6, 7
`Cal. Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104 ......................................... 5
`Continental Baking Co. v. Katz (1968) 68 Cal.2d 512 ......................................................................... 8
`Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 ................................................................ 6
`Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 ...................................... 7, 8
`Kim v. Reins Internat. California, Inc. (2020) 9 Cal.5th 73 ................................................................. 6
`Kohn Law Group, Inc. v. Auto Parts Mfg. Miss., Inc. (2015) 787 F.3d 1237 ....................................... 6
`Payne v. Nat. Collection Systems, Inc. (2001) 91 Cal.App.4th 1037.................................................... 7
`People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760 ............................. 8
`People v. Pacific Land Research Co. (1977) 20 Cal.3d 10................................................................... 5
`People v. Sandoval (2007) 41 Cal.4th 825 ...................................................................................... 8, 10
`People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266 ............................................................ 9
`Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781 ............................................ 7, 8
`Smith v. Super. Ct. (2006) 39 Cal.4th 77 .............................................................................................. 9
`Vazquez v. JanPro Franchising Internat., Inc. (Jan. 14, 2021, S258191) 2021 Cal. LEXIS 1, at
`*2.) .................................................................................................................................................. 9
`Statutes
`Bus. & Prof. Code, § 17203 .................................................................................................................. 8
`Bus. & Prof. Code, § 17204 .................................................................................................................. 8
`Bus. & Prof. Code, § 17206 .................................................................................................................. 6
`Gov. Code, § 100 .................................................................................................................................. 6
`Gov. Code, § 26500 .............................................................................................................................. 6
`Lab. Code, § 2699 ............................................................................................................................. 6, 7
`Lab. Code, § 2786 ............................................................................................................................. 6, 8
`Other Authorities
`Assem. Bill No. 5 .............................................................................................................................. 6, 7
`Assem. Bill No. 263 ............................................................................................................................ 10
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`THE PEOPLE’S OPPOSITION TO DEFENDANT’S MOTION TO STAY
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`CASE NO. CGC-20-584789
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`Private Attorney General Act ....................................................................................................... passim
`Proposition 22 .................................................................................................................................... 10
`Unfair Competition Law ................................................................................................................... 6, 7
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`INTRODUCTION
`I.
`In an attempt to delay liability, DoorDash asks this Court to stay the People’s enforcement
`action in favor of a case being brought by private plaintiffs. DoorDash overlooks the fundamental
`distinctions between this public law enforcement action and private actions. In People v. Pacific Land
`Research Co. (1977) 20 Cal.3d 10, 17, the California Supreme Court explained, “[a]n action filed by
`the People seeking injunctive relief and civil penalties is fundamentally a law enforcement action
`designed to protect the public and not to benefit private parties. The purpose of injunctive relief is to
`prevent continued violations of law and to prevent violators from dissipating funds illegally obtained.
`Civil penalties, which are paid to the government [citations] are designed to penalize a defendant for
`past illegal conduct.” Not only does the private action here serve a different purpose than the People’s
`action, but even if it succeeds, it would not prohibit or terminate the People’s case. There is no basis for
`a stay; this case should proceed.
`
`
`The People’s Action Cannot Be Stayed Under the Exclusive Concurrent Jurisdiction
`Doctrine
`
`II.
`
`ARGUMENT
`
`i.
`
`The People of the State of California Are Not a Party to Marciano, a PAGA-only Case
`
`A.
`
`
`
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`DoorDash first repeats an argument the Court previously found unpersuasive. DoorDash
`contends again that the Court must hold this matter in abatement under the exclusive concurrent
`jurisdiction doctrine because private plaintiffs in the Marciano case have already sued DoorDash under
`the Private Attorney General Act (“PAGA”). (Motion at p. 6:4-7.) Under the doctrine, “when two
`superior courts have concurrent jurisdiction over the subject matter and all parties involved in
`litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject
`matter and all parties involved until such time as all necessarily related matters have been resolved.”
`(Cal. Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 109.) But the Marciano
`plaintiffs are not the same, factually or legally, as the People of the State of California.
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`Under the UCL, the District Attorney sues specifically “in the name of the people of the state of
`California.” (Bus. & Prof. Code, § 17206, subd. (a).)1 Private PAGA plaintiffs do not step into the
`shoes of the District Attorney suing in the name of the People of the State of California. This crucial
`difference derails DoorDash’s argument that the doctrine of exclusive concurrent jurisdiction has any
`relevance here. DoorDash asserts the doctrine does not require an absolute identity of parties in an
`effort to minimize the unique role of the People in this enforcement action. Although this rule is true, it
`is meant only to avoid “gamesmanship” wherein a party could avoid the doctrine “merely by omitting
`one party from a second lawsuit.” (Kohn Law Group, Inc. v. Auto Parts Manufacturing Miss., Inc.
`(2015) 787 F.3d 1237, 1240.) The doctrine requires at least “substantial similarity of parties,” meaning
`that there is at least some overlap of adverse parties. (Ibid.)
`Here there is no overlap. The PAGA plaintiffs in Marciano are not the same or substantially
`identical to the People. DoorDash’s inability to cite a single case where the People have been halted
`from proceeding due to a private PAGA action reveals the weakness of DoorDash’s claim that
`abatement is warranted here. In fact, DoorDash’s own authorities recognize an employee suing under
`PAGA “does so as the proxy or agent of the state’s labor law enforcement agencies.” (Kim v. Reins
`Internat. Cal., Inc. (2020) 9 Cal.5th 73, 81 (Kim), emphasis deleted and quotation marks and citation
`omitted.) Thus, an individual plaintiff in a PAGA action is asserting a representative claim on behalf of
`other aggrieved employees, standing in the shoes of the state labor enforcement agency, the Labor and
`Workforce Development Agency (“LWDA”) (ibid.; accord, Esparza v. KS Industries, L.P. (2017) 13
`Cal.App.5th 1228, 1241), and then only to collect penalties that the LWDA could have assessed for
`past Labor Code violations, most of which must be remitted to the agency. (See, e.g., Arias v. Super.
`Ct. (2009) 46 Cal.4th 969, 986 (Arias); see also Lab. Code, § 2699, subds. (a) and (i).) PAGA plaintiffs
`cannot and do not bring claims on behalf of the People under the UCL or Assembly Bill 5 (“AB 5”).
`(See Bus. & Prof. Code, § 17206, subd. (a); Lab. Code, § 2786.)
`
`
`
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`1 The District Attorney, as the public prosecutor, initiates and conducts all prosecutions of public
`offenses “on behalf of the people.” (Gov. Code, § 26500.) The style of all process shall be “The
`People of the State of California,” and all prosecutions shall be conducted in their name and by their
`authority. (Gov. Code, § 100, subd. (b).)
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`The People’s Claims Are Different From the PAGA Claim in Marciano
`ii.
`The Marciano court has not assumed jurisdiction over the subject matter of the People’s case,
`meaning the exclusive concurrent jurisdiction doctrine does not mandate a stay here. To begin, the
`remedies the Marciano plaintiffs can recover under PAGA are very different from the remedies
`available to the People under their UCL and AB 5 law enforcement claims. Pursuant to PAGA, the
`only remedies the Marciano plaintiffs can recover on behalf of the LWDA are civil penalties for past
`Labor Code violations. (See Lab. Code, § 2699, subds. (a) and (f); Arias, supra, 46 Cal.4th at pp. 980-
`981; Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360, 378-382 (Iskanian)
`[explaining that “[a] PAGA representative action is therefore a type of qui tam action” for civil
`penalties]; Kim, supra, 9 Cal.5th at pp. 80-81; ZB, N.A. v. Super. Ct. (2019) 8 Cal.5th 175, 184-186.)
`But the People here pursue much more expansive relief, including restitution and injunctive relief that
`are not available under PAGA and UCL-based civil penalties that private plaintiffs cannot recover.
`Indeed, a public prosecution under the UCL “is fundamentally different from a class action or other
`representative litigation.” (Payne v. Nat. Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1045.)
`The People’s actual claims also differ significantly from those asserted in Marciano. For
`instance, the People have alleged a whole host of violations by DoorDash not alleged in Marciano.
`These include that DoorDash’s misclassification of Dashers resulted in DoorDash violating, inter alia:
`(1) paid sick leave requirements under Labor Code section 246 and San Francisco Administrative
`Code, Chapter 12W, (2) health care expenditure requirements under the San Francisco Health Care
`Security Ordinance, (3) parental leave requirements under the San Francisco Paid Parental Leave
`Ordinance, (4) workers’ compensation requirements under Labor Code section 3700, and (5) various
`tax requirements under Unemployment Insurance Code sections 976, 976.6, 986, 13020, and 13021.
`(Second Amended Complaint ¶ 88(h)-(p).)
`Thus, the Marciano court lacks “the power to litigate all the issues and grant all the relief to
`which any of the parties might be entitled under the pleadings” and therefore the Marciano court
`cannot claim any exclusive jurisdiction regarding the People’s claims. (Plant Insulation Co. v.
`Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788 (Plant Insulation).)
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`iii.
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`Policy Objectives Weigh Against Application of the Exclusive Concurrent Jurisdiction
`Doctrine to the People’s Case
`Exclusive concurrent jurisdiction is “based upon the public policies of avoiding conflicts that
`might arise between courts if they were free to make contradictory decisions or awards relating to the
`same controversy, and preventing vexatious litigation and multiplicity of suits.” (Plant Insulation,
`supra, 224 Cal.App.3d at p. 788.) Yet the doctrine is only “a rule of policy and countervailing policies
`may make the rule inapplicable.” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20
`Cal.App.4th 760, 770.) Here, California’s public policy aims to punish and prevent Labor Code
`violations. (See Iskanian, supra, 59 Cal.4th at p. 387 [purpose of PAGA is to penalize and deter
`employers who violate California’s labor laws]; Bus. & Prof. Code, §§ 17203-17204 [authorizing
`district attorney to seek restitution and injunctive relief as may be necessary to prevent the use of any
`practice that constitutes unfair competition or to restore any to any person any interest in money or
`property that may have been acquired by means of unfair competition]; Lab. Code, § 2786 [authorizing
`district attorney to seek injunctive relief to prevent misclassification].) Accordingly, even if the PAGA
`claim in Marciano justified the application of the exclusive concurrent jurisdiction doctrine here
`(which it does not), the countervailing policy of allowing law enforcement actions to proceed promptly
`to punish lawbreakers and protect the public would render the rule inapplicable.
`
`DoorDash Has Set Forth No Other Compelling Reason to Stay This Case Based on
`Marciano
`Finding no basis elsewhere to support its request to stay this action, DoorDash begs the Court to
`exercise its inherent authority to stay these proceedings. Although the Court has inherent authority to
`control its own docket, “all exercises of legal discretion must be grounded in reasoned judgment and
`guided by legal principles and policies and appropriate to the particular matter at issue.” (People v.
`Sandoval (2007) 41 Cal.4th 825, 847, citation omitted (Sandoval).) “Discretion is abused in the legal
`sense whenever it may be fairly said that in its exercise the court in a given case exceeded the bounds
`of reason or contravened the uncontradicted evidence.” (Continental Baking Co. v. Katz (1968) 68
`Cal.2d 512, 527, citation and quotation marks omitted.) DoorDash proffers three unpersuasive
`arguments in favor of a discretionary stay, but none find a foothold in case law or policy.
`
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`First, DoorDash repeats its previous argument that the People’s action and Marciano are
`“substantially identical.” (Motion at p. 6:24-25.) For reasons described above, DoorDash’s contention
`is not correct.
`Second, DoorDash raises concern with some theoretical “double recovery.” (Motion at p. 7:6.)
`DoorDash’s argument is entirely premature, especially since this matter is still at the initial pleadings
`stage. Indeed, no trial date has been set and DoorDash has not even answered the Second Amended
`Complaint. The parties are far from the moment where restitution will be determined and paid.
`Likewise, in Marciano, the parties are still seeking preliminary approval of settlement. Their first
`attempt at preliminary approval was rejected by the court — so any worry about a double recovery is
`premature when the “first recovery” has not even been finalized. (See Declaration of Nicholas Parker in
`support of DoorDash’s Demurrers to Plaintiff’s Second Amended Complaint at ¶ 4.) Finally, should
`this theoretical risk of double recovery ever come to fruition, any concerns are easily overcome through
`the use of an offset or tailoring any restitution if and when the time has come to do so.
`Third, DoorDash contends the People will suffer no prejudice from a “temporary stay.” (Motion
`at p. 7:16.) But that is no grounds for staying an action and DoorDash sets forth no authority for its
`argument. Even if that were grounds for a stay, DoorDash’s contention that a further delay would cause
`the People no significant harm is inconsistent with the People’s allegations that the misclassification of
`workers has caused significant harms to workers, businesses, and the public generally. These harms
`have been going on for years2 and they “are not mere abstractions; they represent real harms to real
`working people—consisting for instance of receiving low pay for long hours, having no overtime pay,
`breaks, health insurance, or sick leave, and being forced to pay business expenses.” (People v. Uber
`Technologies, Inc. (2020) 56 Cal.App.5th 266, 310, opn. mod. and pet. for review pending, pet. filed
`Dec. 1, 2020, S265881, quotation marks omitted.)
`Further, these are irreparable harms that need to be remedied as soon as possible, for the welfare
`of workers, their families and the public generally. (See Smith v. Super. Ct. (2006) 39 Cal.4th 77, 82
`[“‘[B]ecause of the economic position of the average worker and, in particular, his dependence on
`
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`2 The California Supreme Court recently ruled that Dynamex and the ABC test apply retroactively. (See
`Vazquez v. Jan-Pro Franchising Internat., Inc. (Jan. 14, 2021, S258191) 2021 Cal. LEXIS 1, at *2.)
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`wages for the necessities of life for himself and his family, it is essential to the public welfare that he
`receive his pay when it is due.’ [Citations].”]; see also Assem. Bill No. 263 (2013-2014 Reg. Sess.) § 1,
`subd. (b). [“When a worker is denied wages . . . there is an immediate and irreparable harm to the
`worker and his or her family.”].) As described above, as much as DoorDash erroneously claims
`otherwise, the remedies the People seek here are legally and factually quite different from what
`Dashers in Marciano can recover as PAGA plaintiffs acting in the name of the LWDA. A stay would
`prejudice the People by indefinitely delaying recovery of the important remedies described above,
`simply so that DoorDash can continue defending itself in an entirely different action. That is no reason
`for this Court to refrain from moving forward with the issues currently before it.
`Additionally, DoorDash wrongly claims that Prop 22 has extinguished any right to prospective
`relief. (Motion at p. 7:16-17.) As expounded upon further in the People’s oppositions to the Demurrer
`and Motion to Strike, if DoorDash is to rely on Prop 22 to defeat the People’s request for injunctive
`relief then DoorDash must first meets its burden to demonstrate it satisfies all the fact-intensive
`requirements of Prop 22. DoorDash has not yet carried that burden, and thus Prop 22 lends no support
`to DoorDash’s attempt to stay this action indefinitely.3
`Thus, there is simply no reasoned judgment or sound legal principles to ground the Court’s
`inherent discretion to stay the action here. (See Sandoval, supra, 41 Cal.4th at p. 847.)
`III. CONCLUSION
`For the foregoing reasons, DoorDash’s Motion should be denied.
`
`
`3 DoorDash asserts the stay will only be “temporary,” but provides no details on what that actually
`means. DoorDash never puts a time restriction on its request for a stay and never submits any
`indication of when Marciano might resolve. In fact, the first motion for preliminary approval of
`settlement Marciano was filed all the way back on November 21, 2019 and the parties are now in the
`same exact position they were back then. (See DoorDash’s Request for Judicial Notice Ex. J.)
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`Dated: January 25, 2021
`
`[\J
`
`CHESA BOUDTN
`District Attorney, City and County of San Francisco
`EVAN H. ACKIRON
`
`Assistant Chief District Attorney
`SCOTT M. STILLMAN
`
`Assistant District Attorney
`
`
`
`
`’Z/whwé-
`
`SCOTT M. STILLMAN
`
`Assistant District Attorney
`
`Attorneys for THE PEOPLE OF THE STATE OF
`CALIFORNIA
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`THE PEOPLE’S OPPOSITION TO DEFENDANT’S MOTION TO STAY
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`CASE NO. CGC-20-584789
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