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`DOMINIC J. MESSIHA, Bar No. 204544
`LITTLER MENDELSON, P.C.
`2049 Century Park East, 5th Floor
`Los Angeles, CA 90067.31 07
`Telephone:
`310.553.0308
`Facsimile:
`310.553.5583
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`DAWN FONSECA, Bar No. 259405
`LITTLER MENDELSON, P.C.
`501 W. Broadway, Suite 900
`San Diego, CA 92101.3577
`Telephone:
`619.232.0441
`Fax No.:
`619.232.4302
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`8
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`Attorneys for Defendant
`9 NORDSTROM, INC.
`
`E-FILED
`8/30/2016 5:47:22 PM
`David H. Yamasaki
`Chief Executive Officer/Clerk
`Superior Court of CA,
`County of Santa Clara
`16CV293718
`Reviewed By:Rowena Walker
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`SUPERIOR COURT OF CALIFORNIA
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`COUNTY OF SANTA CLARA
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`Case No. 1-16-cv-293718
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`ASSIGNED FOR ALL PURPOSES TO JUDGE
`HON. PETER H. KIRWAN, DEPT. 01
`
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`DEFENDANT'S SPECIAL DEMURRER TO
`ABATE OR, IN THE ALTERNATIVE, TO
`STAY PLAINTIFF'S COMPLAINT
`
`ASSIGNED FOR ALL PURPOSES TO JUDGE
`HON. PETER H. KIRWAN, DEPT. 01
`
`Date: September 30, 2016
`Time: 9:00a.m.
`Dept:
`01
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`Trial Date: None Set
`Complaint Filed: April 11, 2016
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`13 ANGELITA TORRES, on behalf ofherself
`and all others similarly situated,
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`Plaintiff,
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`v.
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`NORDSTROM, INC., a Washington
`corporation; and DOES 1-25, inclusive,
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`Defendant.
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`LIITLER MENDELSON, P.C.
`501 W. 810adway
`Suite 900
`sano;~~~i~~~~1.3577
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`Finn wide; 141975550.3 058713.1081
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`MEMORANDUM OF POINTS AND AUTHORITIES- SPECIAL DEMURRER TO ABATE OR STAY
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`

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`TABLE OF CONTENTS
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`Page
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`I.
`
`II.
`
`INTRODUCTION ................................................................................................................... 1
`
`FACTUAL BACKGROUND .................................................................................................. 1
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`A.
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`B.
`c.
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`The Tseng Action ......................................................................................................... 1
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`The Nguyen Action ...................................................................................................... 3
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`The Torres Action (The Instant Action) ...................................................................... 3
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`III.
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`ARGUMENT ........................................................................................................................... 4
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`A.
`
`Abatement Is Mandatory Where, As Here, Another Pending Action Involves
`the Same Parties And Cause of Action ........................................................................ 4
`
`1.
`
`2.
`
`There Is No Question That The Tseng Action Was Filed Earlier And Is
`Currently Pending ............................................................................................ 5
`
`The Two Actions Involve The Same Parties ................................................... 5
`
`a.
`
`b.
`
`The Tseng and Torres Actions Are Both Brought On Behalf Of
`Cosmetic Sales Employees Against Nordstrom .................................. 5
`
`As P AGA Actions, There Is Further Identity In The Form Of
`The Real Party In Interest, The State Of California ............................. 6
`
`3.
`
`The Tseng And Torres Actions Involve The Same Cause Of Action .............. 7
`
`B.
`
`In The Alternative, The Court Should Exercise Its Discretion To Stay The
`Torres Action Pending Resolution Of the Tseng Action ............................................. 8
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`1.
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`2.
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`3.
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`A Stay Of This Action Is Necessary To Avoid Unseemly Conflicts
`With The Federal District Court In The Tseng Action .................................... 9
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`A Stay Is Warranted Because The Two Actions Are Pending In The
`Same State ...................................................................................................... 1 0
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`A Stay Is Warranted To Avoid Confusion And Inefficiency Associated
`With Litigating Multiple Representative Actions .......................................... 11
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`IV.
`
`CONCLUSION ...................................................................................................................... 11
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`LITILER MENDELSON, P.C.
`501 W. Broadwat
`Suite 900
`San Diego, CA 92101.3577
`619.232.0441
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`Finnwide:l41975550.3 058713.1081
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`TABLE OF AUTHORITIES
`
`CASES
`
`Adorna v. Univ. of Phoenix, Inc.,
`711 F. Supp. 2d 1142 (E.D. Cal. 2010) ............................................................................................ 6
`
`Alakozai v. Chase Inv. Servs. Corp.,
`2012 U.S. Dist. LEXIS 30759 (C.D. Cal. Mar. 1, 2012) ................................................................. 7
`
`Arias v. Superior Court,
`46 Cal. 4th 969 (2009) ..................................................................................................................... 9
`
`Brown v. Ralphs Grocery Co.,
`197 Cal. App. 4th 489 (2011) .......................................................................................................... 7
`
`Caiafa Prof Law Corp. v. State Farm Fire & Cas. Co.,
`15 Cal. App. 4th 800 (1993) ............................................................................................ 8, 9, 10, 11
`
`Cal. Union Ins. Co. v. Trinity River Land Co.,
`105 Cal. App. 3d 104 (1980) ........................................................................................................... 4
`
`Cooper v. Federal Reserve Bank of Richmond,
`467 U.S. 867 (1984) ......................................................................................................................... 9
`
`Crowley v Katleman,
`8 Cal. 4th 666 (1994) ................................................................................................................... 7, 8
`
`Gardner v. GC Servs., LP,
`2010 U.S. Dist. LEXIS 67912 (S.D. Cal. July 6, 2010) .................................................................. 6
`
`Gregg v. Superior Court,
`194 Cal. App. 3d 134 (1987) ........................................................................................................... 4
`
`Iskanian v. CLS Transportation Los Angeles, LLC,
`59 Cal. 4th 348 (2014) ..................................................................................................................... 6
`
`Kilby v. CVS Pharmacy,
`63 Cal. 4th 1 (2016). (RJN, Ex. G.) ................................................................................................. 2
`
`Landis v. North American Co.,
`299 U.S. 248 (1939) ......................................................................................................................... 9
`
`Lawyers Title Ins. Corp. v. Superior Court,
`151 Cal. App. 3d 455 (1984) ........................................................................................................... 4
`
`Leadford v. Leadford,
`6 Cal. App. 4th 571 (1992) .............................................................................................................. 4
`
`LITILER MENDELSON, P.C.
`501 W. Broadway
`Suite 900
`San Diego, CA 92101.3577
`619.232.0441
`
`Firmwide:141975550.3 058713.1081
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`11.
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`MEMORANDUM OF POINTS AND AUTHORITIES- SPECIAL DEMURRER TO ABATE OR STAY
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`

`
`TABLE OF AUTHORITIES
`(continued)
`
`Martinez v. Leslie's Poolmart, Inc.,
`2014 U.S. Dist. LEXIS 156218 (C.D. Cal. Nov. 3, 2014) ............................................................... 6
`
`Plant Insulation Co. v. Fibreboard Corp.,
`224 Cal. App. 3d 781 (1990) ....................................................................................................... 4, 5
`
`RynsBurger v. Dairymen's Fertilizer Co-op., Inc.,
`266 Cal. App. 2d 269 (1968) ..................................................................................................... 8, 11
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`Simmons v. Superior Court,
`96 Cal. App. 2d 119 (1950) ......................................................................................................... 4, 8
`
`Stafford v. Dollar Tree Stores, Inc.,
`2014 U.S. Dist. LEXIS 163458 (E.D. Cal. Nov. 21, 2014) ............................................................. 7
`
`Thomson v. Continental Ins. Co.
`66 Cal. 2d 738 (1967) .......................................................................................................... 8, 10, 11
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`Villacres v. ABM Industries, Inc.
`189 Cal. App. 4th 562 (2010) ........................................................................................................ 10
`
`Young v. Trans Union Corp.,
`2015 U.S. Dist. LEXIS 65527 (S.D. Cal. May 19, 2015) ................................................................ 6
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`STATUTES
`
`California Code of Civil Procedure § 597 ............................................................................................ .4
`
`California Code of Civil Procedure§ 430.10(c) ................................................................................... .4
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`LITILER MENDELSON, P.C.
`501 W. Broadway
`Suite 900
`San Diego, CA 92101.3577
`619.232.0441
`
`Finnwide: 141975550.3 058713.1081
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`111.
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`MEMORANDUM OF POINTS AND AUTHORITIES- SPECIAL DEMURRER TO ABATE OR STAY
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`I.
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`INTRODUCTION
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`Plaintiff Angelita Torres seeks penalties against Defendant Nordstrom, Inc. on behalf of
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`3 Nordstrom Cosmetic Sales Employees for alleged failure to provide suitable seating. However, that
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`LITTLER MENDELSON, P.C.
`501 W. Broadway
`Suite 900
`San Diego, CA 92101.3577
`619.232.0441
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`very same claim, on behalf of the very same employees, is already being litigated against Nordstrom
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`in federal district court by former employee Jessika Tseng in Tseng v. Nordstrom. All of the
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`putative members of the representative action here are also putative members of the Tseng
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`representative action. Furthermore, the Nguyen v. Nordstrom case is also already pending, which
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`similarly asserts a claim for failure to provide suitable seating on behalf of the same Nordstrom
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`employees covered by Plaintiff Torres' claim.
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`As such, this action should be abated or, in the alternative stayed, pursuant to California
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`Code of Civil Procedure section 430.10 (c), pending the outcome ofthe earlier-filed actions.
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`II.
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`FACTUAL BACKGROUND
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`The Tseng Action
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`A.
`On September 9, 2011, Jessika Tseng, a former Cosmetics Sales Employee of Nordstrom,
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`filed a representative action complaint in the Los Angeles County Superior Court against Nordstrom,
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`Inc. (the "Tseng Action"). (See Nordstrom's Request for Judicial Notice in Support of Demurrer
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`("RJN"), Ex. A.) On October 13, 2011, Nordstrom removed the case to the United States District
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`Court for the Central District of California. (RJN, Ex. B.) On July 23, 2012, Plaintiff Tseng filed
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`the operative first amended complaint. (RJN, Ex. C.) 1
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`At all times, Plaintiff Tseng's operative complaint has alleged only one cause of action
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`under the California Private Attorneys General Act ("PAGA',-that Nordstrom failed to provide
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`suitable seating to "current and former cosmetic [sales] employees" in California. (RJN, Exs. A
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`(~~ 9-13), C (~~ 15-19).) As such, the Tseng Action fully encompasses both the would-be PAGA
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`"class" and the only cause of action in this case, namely a P AGA claim for suitable seating brought
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`1 The Tseng complaint was amended to allege class allegations. However, Plaintiff Tseng's motion
`for class certification was denied on April 2, 2014. Since then, the case has proceeded as a PAGA(cid:173)
`only action.
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`on behalf of all Cosmetic Sales Employees at Nordstrom's Valley Fair location in California.
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`(Torres Complaint, ~~17-26.)
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`The Tseng Action is still pending and has been actively prosecuted for nearly five years.
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`Specifically, the parties in the Tseng Action have conducted the following key discovery and law
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`and motion practice:
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`On February 22, 2012, Nordstrom deposed Plaintiff Tseng. (Declaration of
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`Dawn Fonseca ("Fonseca Decl.") ~ 2.)
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`On November 2, 2012, Plaintiff Tseng deposed Nordstrom's person most
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`knowledgeable on seating. (Fonseca Decl. ~ 3.)
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`On August 23, 2013, Plaintiff Tseng moved for class certification, which was
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`later denied on January 15, 2014. (RJN, Ex. D.)
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`In September and October 2013, Nordstrom deposed nine of Plaintiff Tseng's
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`declarants in support of class certification, as well as her expert regarding
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`suitable seating. (Fonseca Decl. ~ 4.)
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`As of December 19, 2013, the parties had collectively produced over 3,800
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`pages of documents in the litigation. (Fonseca Decl. ~ 5.)
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`On March 20, 2014, the parties engaged in a settlement conference before the
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`Honorable Magistrate Judge Jay C. Ghandi, which did not resolve the case.
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`(RJN, Ex. E.)
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`On March 31, 2014, Nordstrom filed a motion for judgment on the pleadings,
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`addressed to the manageability of Plaintiff Tseng's PAGA claim. (RJN, Ex.
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`F.)
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`On April 2, 2014, the Honorable Judge Christina A. Snyder stayed the action
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`pending a decision by the California Supreme Court in Kilby v. CVS
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`Pharmacy, 63 Cal. 4th 1 (2016).
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`(RJN, Ex. G.) That stay has since been
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`lifted and litigation is ongoing. (RJN, Ex. H.)
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`As this timeline confirms, the Tseng Action has been vigorously litigated since its inception.
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`LITILER MENDELSON, P.C.
`501 W. Broadway
`Suite 900
`San Diego, CA 92101.3577
`619.232.0441
`
`Ill/
`Firmwide:141975550.3 058713.1081
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`MEMORANDUM OF POINTS AND AUTHORITIES- SPECIAL DEMURRER TO ABATE OR STAY
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`B.
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`The Nguyen Action
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`On June 17, 2011, Plaintiff Trang Nguyen, a former Cosmetics Sales Employee of
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`3 Nordstrom, filed a class and representative action complaint in Orange County Superior Court
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`against Nordstrom, Inc. (the "Nguyen Action"). (RJN, Ex. I.)
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`Among other wage and hour claims, the Nguyen complaint maintains a cause of action
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`under PAGA, alleging that Nordstrom failed to provide suitable seating to Nordstrom's
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`"salesperson[s]" in California. (RJN, Ex. I,~~ 16, 91(g).) Consequently, like the Tseng Action, the
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`8 Nguyen Action fully covers both the proposed PAGA "class" and the only cause of action in Torres,
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`9
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`i.e. a P AGA claim for suitable seating brought on behalf of all Cosmetic Sales Employees-
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`11
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`12
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`cosmetic "salespersons"-at Nordstrom's Valley Fair location in California. (Torres Complaint,~~
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`17-26.)
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`Nordstrom served initial written discovery and responses were provided by Plaintiff Nguyen.
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`13 However, on October 5, 2012, Nordstrom filed a motion to stay the action based, in part, on the
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`14
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`direct overlap with the Tseng Action and its suitable seating claim. (RJN, Ex. J.) Over Plaintiff
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`15 Nguyen's opposition, Judge Nancy Wieben Stock granted the motion and ordered the matter stayed
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`LlffiER MENDELSON, P,C.
`501 W. Broadway
`Suile900
`San Diego, CA 92101.3577
`619.232.0441
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`on December 7, 2012. (RJN, Ex. K.) The case has remained stayed to date based on the continued
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`litigation in the Tseng Action. (RJN, Ex. L.)
`c.
`Over four years and seven months after the Tseng Action commenced, Plaintiff Torres filed
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`The Torres Action (The Instant Action)
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`her Complaint in this action, on April 11, 2016 (the "Torres Action"), alleging a single cause of
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`action for PAGA penalties based on the claim that Nordstrom failed to provide suitable seating to
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`Cosmetics Sales Employees at Nordstrom's Valley Fair location in California. (Torres Complaint,
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`~~17-26.)
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`Nordstrom was served with Plaintiff Torres' Complaint on April 12, 2016. To date, no
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`discovery or other proceedings have taken place in this action. (Fonseca Decl. ~ 6.)
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`I II I
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`I II I
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`I II I
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`III. ARGUMENT
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`A.
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`Abatement Is Mandatory Where, As Here, Another Pending Action Involves the
`Same Parties And Cause of Action.
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`Section 430.10 ofthe California Code of Civil Procedure states, in pertinent part:
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`The party against whom a complaint or cross-complaint has been filed
`may object, by demurrer or answer as provided in Section 430.30, to
`the pleading on any one or more of the following grounds:
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`There is another action pending between the same parties on
`(c)
`the same cause of action.
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`Code Civ. Proc., § 430.10(c). In accordance with the language of section 430.10 (c), the demurring
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`party must show: (1) another action is "pending;" (2) the pending action involves "the same parties;"
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`and (3) the pending action involves "the same cause of action." If these requirements are met,
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`abatement of the second-filed action is mandatory. Cal. Code of Civ. Proc. § 597; Lawyers Title Ins.
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`Corp. v. Superior Court, 151 Cal. App. 3d 455, 460 (1984) ("An order of abatement issues as a
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`matter of right not as a matter of discretion where the conditions for its issuance exist."); Leadford v.
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`Leadford, 6 Cal. App. 4th 571, 574 (1992) (The "pendency of another earlier action growing out of
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`the same transaction and between the same parties is a ground for abatement of the second action.
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`. . . A trial court has no discretion to allow the second action to proceed if it finds the first
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`involves substantially the same controversy between the same parties.") (emphasis added); Plant
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`Insulation Co. v. Fibreboard Corp., 224 Cal. App. 3d 781, 787-88 (1990); Cal. Union Ins. Co. v.
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`Trinity River Land Co., 105 Cal. App. 3d 104, 108-09 (1980); Gregg v. Superior Court, 194 Cal.
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`App. 3d 134, 136 (1987).
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`[This] rule which forbids a later action ... between the same parties involving the
`same subject matter rests upon principles of wisdom and justice, to prevent vexation,
`oppression and harassment, to prevent unnecessary litigation, to prevent a multiplicity
`of suits -- in short, to prevent two actions between the same parties involving the
`same subject matter from proceeding independently of each other.
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`See Simmons v. Superior Court, 96 Cal. App. 2d 119, 124-25 (1950) (discussing motion to stay);
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`Conservatorship of Pacheco, 224 Cal. App. 3d 171, 176 (1990) ("abatement prevents mmecessary
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`duplication of litigation over the same claim, and relieves defendants of the burden of defending
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`LIThER MENDELSON, P.C.
`501 W. Broadway
`Suite 900
`San Diego, CA 92101.3577
`619.232.0441
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`against a multiplicity of suits").
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`Finnwide:141975550.3 058713.1081
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`MEMORANDUM OF POINTS AND AUTHORITIES- SPECIAL DEMURRER TO ABATE OR STAY
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`Here, the earlier-filed and still pending Tseng Action alleges the same claim against the same
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`defendant on behalf of the same allegedly aggrieved employees as in the Torres Action. As a matter
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`of right, abatement is therefore the appropriate remedy. Moreover, as a matter of public policy, the
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`rule will serve to conserve the resources of the courts, avoid unnecessary conflicts and save
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`5 Nordstrom from litigating the same claim alleged on behalf of the same employees in two different
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`courts.
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`1.
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`There Is No Question That The Tseng Action Was Filed Earlier And Is
`Currently Pending.
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`The Tseng Action was filed more than four years and seven months before Plaintiff Torres
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`filed this action. Further, not only is the Tseng Action still pending, it has been heavily litigated and
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`is actively moving forward. As such, the first element of section 430.10 (c) is readily met.
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`2.
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`The Two Actions Involve The Same Parties.
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`To establish that the earlier, pending action involves the "same parties," the moving party
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`14 must show the actions share a common plaintiff and defendant. However, the moving party need not
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`501 W. Broadway
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`San Diego, CA 92101.3577
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`show an exact identity of parties between the first and second action. Rather, the moving party need
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`only show that there is an overlap. See Plant Insulation, 224 Cal. App. 3d at 788 ("the fact that the
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`parties in the second action are not identical does not preclude application of the rule"). Here, there
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`is overlap ofthe named defendant, the PAGA "class" on whose behalf the Tseng and Torres Actions
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`are brought, and also the real party in interest-the state of California.
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`a.
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`The Tseng and Torres Actions Are Both Brought On Behalf Of
`Cosmetic Sales Employees Against Nordstrom.
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`The Tseng and Torres Actions are both brought against Defendant Nordstrom, Inc.
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`Likewise, both the Tseng and Torres Actions are· both brought on behalf of "similarly aggrieved"
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`Cosmetics Sales Employees at Nordstrom's Valley Fair store. 2 (RJN, Ex. C (~~ 1, 7, 8, 11, 15
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`(defining the class of "aggrieved employees" as "[a]ll persons who have been employed by
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`Nordstrom as Cosmetic Counter Employees in the State of California from September 9, 201 0 to the
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`2 Similarly, the Nguyen case is also brought on behalf of sales employees at California Nordstrom
`stores.
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`5.
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`MEMORANDUM OF POINTS AND AUTHORITIES- SPECIAL DEMURRER TO ABATE OR STAY
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`final judgment in this action"); Torres Complaint~~ 4, 12, and Ex. A thereto ("Nordstrom failed to
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`provide cosmetic employees such as Plaintiff Torres suitable seating when performing their job
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`duties reasonably permitting the use of seats, such as selling cosmetic products and operating the
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`cash register. Claimant estimates there are over 1 00 cosmetics employees affected by Nordstrom's
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`policies."); Adorna v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142, 1147 (E.D. Cal. 2010) ("[T]he
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`first-to-file rule does not require strict identity of the parties, but rather substantial similarity. In a
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`collective action, the classes, and not the class representatives, are compared.") (internal citations
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`omitted); Gardner v. GC Servs., LP, 2010 U.S. Dist. LEXIS 67912 (S.D. Cal. July 6, 2010) (in
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`analyzing a motion to stay and "in the context of a class action, the classes, and not the class
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`representatives, are compared"); Young v. TransUnion Corp., 2015 U.S. Dist. LEXIS 65527, 16-17
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`(S.D. Cal. May 19, 2015) (same). While Plaintiff Torres limits her proposed PAGA "class" to
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`Cosmetic Sales Employees who work(ed) at Nordstrom's Valley Fair store, this more limited "class"
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`is squarely covered by the Tseng Action, which encompasses all Cosmetic Sales Employees in
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`California, including at the Valley Fair store.
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`b.
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`As P AGA Actions, There Is Further Identity In The Form Of The
`Real Party In Interest, The State Of California.
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`Perhaps more fundamentally, both the Tseng and Torres Actions are brought under PAGA on
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`behalf of the State of California. Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348,
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`382 (2014) ("The government entity on whose behalfthe plaintiff files suit is always the real pmiy in
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`interest in the suit."). As such, it is the State of California, not the named plaintiffs, that is the
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`intended beneficiary of the penalties available in P AGA actions. I d. ("an action to recover civil
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`penalties 'is fundamentally a law enforcement action designed to protect the public and not to
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`benefit private parties"). Consistent with this principle, if P AGA penalties are recovered, the state
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`agency will receive 75% of the penalties, with only the remaining 25% going to aggrieved
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`employees. Id. at 380.
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`On that basis, courts have held that a second-filed P AGA action must be stayed pending a
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`final outcome in the first filed action. See Martinez v. Leslie's Poolmart, Inc., 2014 U.S. Dist.
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`llffiER MENDELSON, P.C.
`501 W. Broadway
`Suite 900
`San Diego, CA 92101.3577
`619.232.0441
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`LEXIS 156218 (C.D. Cal. Nov. 3, 2014) (Agreeing with the employer's argument that "permitting
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`MEMORANDUM OF POINTS AND AUTHORITIES- SPECIAL DEMURRER TO ABATE OR STAY
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`duplicative P AGA proceedings is both contrary to California Supreme Court precedent and creates
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`LITILER MENDELSON, P.C.
`501 W. Broadway
`Suite900
`San Diego, CA 92101.3577
`619.232.0441
`
`an improper risk of inconsistent results" and holding that "[b ]ecause a PAGA ruling favoring [the
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`first-filed action] would necessarily bind non-party [employees], the Court agrees that arbitration of
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`[the second-filed] representative PAGA claims must be stayed-to the extent that these claims
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`overlap."); Alakozai v. Chase Inv. Servs. Corp., 2012 U.S. Dist. LEXIS 30759 (C.D. Cal. Mar. 1,
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`20 12) (Requiring the plaintiffs "P AGA claim [to] be stayed pending adjudication of the P AGA
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`claim in the first-filed ... case" because "Defendant is a party in both cases, [and], as a
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`representative plaintiff, Baumann brings his claims against Defendant on behalf of nonparty
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`employees, as well as the government," such that "allowing the two matters to proceed
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`simultaneously would unnecessarily risk inconsistent judgments and defeat efficiency."); Stafford v.
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`Dollar Tree Stores, Inc., 2014 U.S. Dist. LEXIS 163458, at *8 (E.D. Cal. Nov. 21, 2014) (citing
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`section 2699(h) for the proposition that "[t]he aggrieved employee cannot pursue a PAGA action if
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`the agency or another party is pursuing enforcement against the employer on the same claims under
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`the same provisions of the Labor Code"); Brown v. Ralphs Grocery Co., 197 Cal. App. 4th 489, 501
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`(20 11) (citing section 2699(h) for the proposition that P AGA "prohibits an employee action when
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`the agency or someone else is directly pursuing enforcement against the employer 'on the same facts
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`and theories' under the same 'section(s) of the Labor Code").
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`Thus, the fact that counsel named different lead plaintiffs in the Tseng and Torres Actions is
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`immaterial. The only cause of action at issue, the P AGA claim for suitable seating, is a
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`representative claim brought on behalf of the State of California on behalf of Nordstrom's Cosmetic
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`Sales Employees against Nordstrom. Accordingly, the second element of section 430.10 (c) is met.
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`3.
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`The Tseng And Torres Actions Involve The Same Cause Of Action.
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`To determine whether an earlier-filed complaint involves the same "cause of action" for the
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`purposes of section 430.10 (c), California courts invoke the "primary rights theory." Crowley v
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`Katleman, 8 Cal. 4th 666, 681-82 (1994) ("the primary right is simply the plaintiffs right to be free
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`from the particular injury suffered").
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`Here, Plaintiff Torres' single cause of action for PAGA penalties is predicated on
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`Nordstrom's alleged failure to provide suitable seating pursuant to Wage Order 7-2001, § 14.
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`MEMORANDUM OF POINTS AND AUTHORITIES- SPECIAL DEMURRER TO ABATE OR STAY
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`(Torres Complaint, at~~ 17-26.) The earlier-filed Tseng Action likewise alleges a single cause of
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`action for P AGA penalties for failure to provide suitable seating pursuant to Wage Order 7-2001, §
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`14. (RJN, Ex. C (~~ 14-19.) Thus, the causes of action are not only identical, but they are based on
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`the same primary right - the right of Cosmetic Sales Employees to be provided with suitable seating
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`5 when the nature ofthe work reasonably permits sitting. See Crowley, 8 Cal. 4th at 681-82. As such,
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`the third and final element of section 430.10 (c) is met and mandatory abatement should issue.
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`B.
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`In The Alternative, The Court Should Exercise Its Discretion To Stay The Torres
`Action Pending Resolution Of the Tseng Action.
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`As discussed above, Nordstrom respectfully maintains that mandatory abatement is
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`appropriate here. However, if this Court is not yet prepared to order mandatory abatement, it should
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`exercise its inherent authority to stay this action pending final resolution of the Tseng Action in the
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`interest of judicial economy and public policy considerations.
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`"[W]hen a federal action has been filed covering the same subject matter as is involved in a
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`California action, the California court has the discretion but not the obligation to stay the state comi
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`action." Caiafa Prof Law Corp. v. State Farm Fire & Cas. Co., 15 Cal. App. 4th 800, 804 (1993);
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`Thomson v. Continental Ins. Co. 66 Cal. 2d 738, 746 (1967) ("Granting a stay in a case where the
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`issues in two actions are substantially identical ... is a matter addressed to the sound discretion of
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`the trial court."); RynsBurger v. Dairymen's Fertilizer Co-op., Inc., 266 Cal. App. 2d 269, 279
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`(1968) ("Where there exists two or more actions involving the same subject matter or the same facts
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`or principles, restraint is necessary to prevent a multiplicity of judicial proceedings. . . Restraint is
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`also necessary to avoid unseemly conflict between courts that might arise if they were free to make
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`contradictory decisions relating to the same controversy.").
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`"In exercising its discretion the court should consider the importance of discouraging
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`multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts
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`with the courts of other jurisdictions. It should also consider whether the rights of the parties can
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`best be determined by the court of the other jurisdiction because of the nature of the subject matter,
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`the availability of witnesses, or the stage to which the proceedings in the other court have already
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`28
`LITILER MENDELSON, P.C.
`501 W. Broadway
`Suite 900
`San Diego, CA 92101.3577
`619.232.0441
`
`advanced." Thomson, 66 Cal. 2d at 746-47; Caiafa, 15 Cal. App. 4th at 804; Simmons, 96 Cal. App.
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`MEMORANDUM OF POINTS AND AUTHORITIES- SPECIAL DEMURRER TO ABATE OR STAY
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`2d at 124-25. Ultimately, the "power to stay proceedings is incidental to the power inherent in every
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`court to control the disposition of the causes on its docket with economy of time and effmi for itself,
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`for counsel and for litigants." Landis v. North American Co., 299 U.S. 248, 254 (1939).
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`Here, a discretionary stay should issue because: (1) a stay will avoid unseemly conflicts with
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`the federal district court in Tseng; (2) both cases are pending in California; and (3) a stay will result
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`in more efficient litigation, given the advanced status of the litigation in the Tseng Action.
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`1.
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`A Stay Of This Action Is Necessary To Avoid Unseemly Conflicts With
`The Federal District Court In The Tseng Action.
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`The Torres action should be stayed to avoid potentially conflicting judgments with the U.S.
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`District Court for the Central District of California in the Tseng Action. Again, the basis for the
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`stay, as outlined above, is that Plaintiff Torres's claim for PAGA penalties for failure to provide
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`suitable seating is identical to the claim brought in the Tseng Action. Moreover, both actions are
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`brought on behalf of all Cosmetic Sales Employees at Nordstrom's Valley Fair store and the state of
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`California, against Nordstrom.
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`The Caiafa case is instructive. Caiafa, 15 Cal. App. 4th at 804. There, the court stayed a
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`state court action to avoid conflicts with a federal action pending in a California district court where
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`the two actions covered the same subject matter. In so holding, Caiafa reiterated that "[t]he potential
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`for 'unseemly conflict' is great, unless both forums should reach the exact same resolution of the
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`issues." Caiafa, 15 Cal. App. 4th at 807. Here, as in Caiafa, if this action is not stayed, there is at
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`least a risk that the federal and state courts will reach conflicting decisions, resulting in prob