Moncada v. AJ’s Restaurant & Bar, et al.

LINE 10 24CV440175 Cruz v. Wellnessmart M.D. (Class Hearing: Motion For Final Action / PAGA) Approval is GRANTED

Click on line 10 for tentative ruling LINE 11 24CV450946 Norma Barragan vs Quantum Motion: Preliminary Financial Group, Inc. et al (Class Approval is GRANTED Action) Click on line 11 for tentative ruling LINE 12 19CV346694 Moncada v. AJ's Restaurant & Bar, et Hearing: Motion to Dismiss al. (Class Action) is GRANTED

Click on line 12 for tentative ruling LINE 13 23CV427840 Johnson v. Eureka Restaurant Group, LLc Hearing: Petition for (PAGA) Coordination

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Case Name: Moncada v. AJ’s Restaurant & Bar, et al. Case No.: 19CV346694

This is a putative class action seeking recovery of unpaid wages, among other things. Plaintiff Deidra Moncada alleges that defendants Paul Gill (“Gill”) and AJ’s Restaurant & Bar LLC (“AJ’s”) (collectively, “Defendants”) committed various wage and hour violations.

Before the Court is defendant Gill’s motion to dismiss, which is opposed. As discussed below, the Court GRANTS Defendant Gill’s motion to dismiss.

XL. BACKGROUND

According to the operative second amended complaint (“SAC”), from approximately 2003 to May 9, 2021, Andrea Russo (“Russo”) owned AJ’s as a sole proprietorship, which he managed and operated with his son, Defendant Gill. (SAC, ¶ 9.) On May 2013, Plaintiff had an interview with Defendant Gill and Russo for a position as a dancer at AJ’s. (SAC, ¶ 10.) Plaintiff was employed by Defendants from approximately May 1, 2013 and April 22, 2017. (SAC, ¶ 11.) Her primary duties were to dance on stage, communicate with patrons, and provide lap dances for patrons. (Ibid.)

When she was hired, Gill and Russo informed her of the attire she was expected to wear, how she was required to look, the amount she was required to pay them, the DJs, and the security. (SAC, ¶ 12.) During her employment, she spoke to Gill almost every day and he controlled the dancers’ wages, hours and working conditions, including Plaintiff’s. (Ibid.) On May, 1, 2013, Gill informed Plaintiff that she would receive a 1099. (SAC, ¶ 13.)

Plaintiff alleges Defendant misclassified her and other employees; failed to pay them an hourly rate; denied them rest and meal periods and failed to pay compensation in lieu thereof; failed to provide complete and accurate wage statements; and failed to provide paid sick leave. (SAC, ¶¶ 15-20.) On April 22, 2017, Plaintiff was terminated from employment and Defendants failed to provide Plaintiff with her final pay. (SAC, ¶ 25.)

On April 19, 2019, Plaintiff initiated this action with the filing of the complaint and on April 6, 2023, she filed her first amended complaint. On September 7, 2023, Plaintiff filed the operative SAC, which asserts the following causes of action: (1) failure to pay minimum wage; (2) failure to pay minimum wage-San Jose Minimum Wage Municipal Code 4.100.040; (3) failure to provide rest and meal breaks; (4) failure to provide paid sick days (Labor Code § 246); (5) failure to furnish complete and accurate wage statements (Labor Code § 226); (6) failure to pay all wages due upon termination (Labor Code § 203); (7) failure to reimburse for necessary business expenses (Labor Code § 2802); (8) common law conversion; and (9) failure to pay gratuities (Labor Code § 351).

On April 23, 2024, the Court (Hon. Adams) issued its order, which sustained AJ’s demurrer to the SAC without leave to amend. On July 5, 2024, Plaintiff filed a notice of appeal. On June 23, 2025, the Court (Hon. Adams) issued its order, which stayed the matter pending the resolution of the appeal. On March 26, 2026, a remittitur was filed and on March

30, 2026, the Court (Hon. Adams) issued its order, which vacated the prior order and overruled the demurrer.

XLI. MOTION TO DISMISS

A.

Legal Standard

Code of Civil Procedure section 583.310, provides, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.)

Dismissal of cases not brought to trial within this timeframe is mandatory. Code of Civil Procedure section 583.360, states: (a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute. (Code Civ. Proc., § 583.360, [emphasis added].)

“The purpose of the five-year rule is to ‘promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed . . . [and] to protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite period of time.’” (Hill v. Bingham (1986) 181 Cal.App.3d 1, 5 (Hill) [internal citations and quotations omitted.].) Courts have recognized implied exceptions where going to trial was impossible. (Ibid.) “The purpose of the statute is. . .to prevent avoidable delay for too long a period. It is not designed arbitrarily to close the proceeding at all events in five years. . .” (Ibid [emphasis original].)

“What is impossible, impracticable or futile must be determined in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.” (Hill, supra, 181 Cal.App.3d at 6 [internal citations and quotations omitted; emphasis in original.].)

B.

Discussion

Plaintiff initiated this action on April 19, 2019 and on November 9, 2020, Defendants filed their answer. (Gill’s Memorandum of Points and Authorities (“MPA”), p. 4:13-17.) The instant action was deemed complex on December 8, 2020 and formal discovery was stayed. (MPA, p. 4:18-20.) The parties were ordered to meet and confer regarding case management issues, alternative dispute resolutions, and informed that they could engage in informal discovery. (MPA, p. 4:20-23.)

Between January 2021 and April 2021, the parties met and conferred regarding informal discovery, agreed on the language for a notice to putative class members, and the terms of a stipulated protective order. (MPA, p. 5:2-6.) On June 29, 2021, Defendants sent the

notice to putative class members. (MPA, p. 5:11-14.) On January 27, 2022, the Court lifted the stay on formal discovery. (MPA, p. 5:26.) Plaintiff served written discovery; however, she failed to file a motion to compel when there was no response. (MPA, pp. 5:27-6:2.) Plaintiff has not taken any depositions in this matter. (MPA, p. 6:2-3.)

On March 13, 2023, the Court granted Plaintiff’s motion to file an amended complaint, but Plaintiff failed to timely file the amended complaint. (MPA, pp. 6:21-7:1.) On August 18, 2023, the Court (Hon. Kulkarni) sustained Defendants’ demurrer to the FAC with 20 days leave to amend. (MPA, p. 7:5-14.) On September 7, 2023, Plaintiff filed the operative SAC. On April 23, 2024, the Court (Hon. Adams) sustained the demurrer. (MPA, p. 22-23.)

The parties disputed the deadlines regarding Plaintiff’s motion for class certification. (MPA, p.p. 7:24-8:5.) At the May 23, 2024 case management conference (“CMC”), the Court set deadlines, which Plaintiff did not meet. (MPA, p. 8:6-16.) Gill did not waive the 5-year statute. (MPA, p. 8:9, 8:19.) On June 23, 2025, the Court entered its order, which stayed this matter pending resolution of the appeal.

Gill argues that the time to bring this action to trial expired by October 19, 2024. (MPA, p. 9:18-20.) He further argues there was no tolling of time to bring the matter to trial.

Code of Civil Procedure section 583.340, provides,

In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed: (a) the jurisdiction of the court to try the action was suspended. (b) prosecution or trial of the action was stayed or enjoined. (c) bringing the action to trial, for any other reason, was impossible, impracticable, or futile. (Code Civ. Proc., § 583.340.)

Plaintiff argues the statutes require exclusion of periods of time when bringing the action was impossible, impracticable, or futile. (Plaintiff’s Opposition (“Opp.”), p. 8:1-3.) She argues that the Court managed complex case restrictions made advancement to trial impracticable during a substantial period. (Opp., p. 9:3-5.) Plaintiff first directs the Court to its December 8, 2020 order (the “Order”), which deemed the case complex and stayed formal discovery and the responsive pleading deadline until a date for the first case management conference (“CMC”) for such filings and hearings was set. (Order, pp. 2-3.)

At the January 14, 2021 CMC, the parties were ordered to meet and confer about informal discovery and alternative dispute resolutions. (See January 14, 2021 Minute Order.) On January 27, 2022, the Court (Hon. Kulkarni) lifted the discovery stay. (See January 27, 2022 Minute Order.)

Court procedures and calendar control are not considered circumstances amounting to impracticality. In Hill, the court affirmed the trial court’s dismissal under the five-year statue where the court set a trial date beyond five years, since plaintiff there did not alert the court to the approaching deadline and plaintiff could have corrected the timing issue by requesting that the trial be held within the last remaining two months of the five-year period. (Hill, supra, 181 Cal.App.3d at 9-10.) Hill states:

“[Reasonable] diligence places on a plaintiff the affirmative duty to make every reasonable effort to bring a case to trial within five years, even during the last months of its statutory life. One means by which this duty may be fulfilled is a motion to specially set the case for trial pursuant to rule 375(b) of the California Rules of Court.. . . If the plaintiff could have acted to bring the case to trial on time and failed to do so, relief will not be given even if the plaintiff claims to have relied on the performance of an official duty. [Where] the delay in going to trial was caused by [plaintiff’s] own miscalculation rather than circumstances beyond [one’s] control” the exceptions do not apply. (Ibid.)

In Warner Bros. Entertainment Inc. v. Superior Court (2018) 29 Cal.App.5th 243 (Warner Bros), the appellate court explained that an initial 43 day order “staying responsive pleadings and outstanding discovery requests, while also requiring the parties to ‘negotiate and agree ... on a case management plan’ and to prepare and file a joint statement specifically addressing case-related issues in multiple areas (and also allowing the parties to informally exchange documents), does not ‘effect a complete stay of the prosecution of the action’ within the meaning of” Gaines v.

Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1087 (Gaines) and Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 730 (Bruns)...” (Id. at p. 245.) Thus, it held that the trial court erred when concluded the five-year period was tolled for 43 days because of such a stay, issued at the outset of the case. (Ibid.)

Plaintiff argues that Warner Bros does not compel dismissal because here, the discovery stay lasted for a longer period and Plaintiff attempted to move the case forward during the stay, there were formal discovery efforts later, and the time period related to the appeal. (Opp., p. 11:2-6.) During the discovery stay, the parties were repeatedly ordered to meet and confer, which they did and they engaged in informal discovery. (Declaration of Rebecca Coll (“Coll Decl.”), ¶¶ 5-9; see also Declaration of Jocelyn Burton (“Burton Decl.”), ¶¶ 19-45.)

Defense counsel Coll states that Plaintiff never indicated that informal discovery was inadequate nor did she request the stay of formal discovery be lifted until 2022. (Coll Decl., ¶ 10.) Plaintiff’s assertion regarding formal discovery is belied by the fact that it appears the only formal discovery request propounded by Plaintiff was in May 2022 and defense counsel did not realize the request was sent until years later. (Coll Decl., ¶ 12.) Moreover, Plaintiff did not meet and confer about Gill’s failure to provide responses nor was a motion to compel ever filed. (Ibid.)

Therefore, Plaintiff fails to establish reasonable diligence. As a result, the Court is not persuaded by Plaintiff’s argument that the initial stay period should be excluded.

Next Plaintiff argues that the appeal concerning AJ’s made trial against Gill impracticable because it would impact the class definition, liabilities theories, discovery, allocation of responsibility, and determine which Defendants should participate in class certification and trial. (Opp., p. 11:16-22.) She further asserts that proceeding against Gill alone, while the appeal involved AJ’s was pending, risked duplicative discovery, inconsistent rulings, repeated class notice, fragmented adjudication, and a second trial after reversal. (Opp., p. 11:23-26.)

Here, Plaintiff initiated this action on April 19, 2019 against Gill (and other defendants). At the time of filing, the 5-year deadline was on April 19, 2024. California Rule of Court, Emergency Rule 10, was enacted in response to COVID-19. Emergency Rule 10,

provides, “Notwithstanding any other law, including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.” (Cal. Rules of Ct., Appx., Emergency Rule 10; see also Oswald v. Landmark Builders, Inc. (2023) 97 Cal.App.5th 240, 246.) Thus, in applying Emergency Rule 10, the deadline extends to October 19, 2024. For reasons explained above, Plaintiff failed to establish reasonable diligence to justify excluding the initial discovery stay period. Thus, the Court declines to exercise its discretion to find that the initial discovery stay falls within Section 583.340, subdivision (c). The only remaining time period for exclusion pertains to the appeal.

On April 23, 2024, the Court (Hon. Adams) issued its order, which sustained Defendant AJ’s demurrer without leave to amend. On May 23, 2024, the Court ordered Plaintiff to file the class certification motion and set the hearing date for September 26, 2024. On July 5, 2024, Plaintiff filed a notice of appeal, however, the Court (Hon. Adams) did not issue its order, which granted Plaintiff’s motion to stay pending appeal until June 23, 2025.

The long-standing judicial understanding of the term ‘stay’ in the context of the fiveyear statute is that it refers to those postponements that freeze a proceeding for an indefinite period, until the occurrence of an event that is usually extrinsic to the litigation and beyond the plaintiff’s control.” (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1092 (Gaines).)

Here, Plaintiff’s notice of appeal was filed on July 5, 2024, however, her motion to stay was not filed until April 28, 2025—over 9 months later. The Court agrees that the matter was tolled from June 23, 2025 (when the order issued its order granting the motion to stay) until Commented [GU1]: is this court March 26, 2026 (when the Sixth District Court of Appeal issued its remittitur reversing the judgment on the demurrer). However, the Court is not persuaded by Plaintiff’s argument that the entire period from the notice of appeal should be excluded because there was not a complete stay in the matter. (See Code Civ.

Proc., § 583.340, subd. (b).) Similarly, the Court is not persuaded that the pre-discretionary stay period should be excluded on the grounds that it made trial against Gill impracticable or futile because Plaintiff’s decisions regarding litigation strategy do not constitute impracticability since those decisions were within Plaintiff’s control. (See Gaines, supra, 62 Cal.4th at p. 1011-1102 [tolling under section 583.340, subd. (c), requires “a period of impossibility, impracticability, or futility, over which plaintiff had no control” and a showing of reasonable diligence.] [emphasis added].)

Additionally, there is no evidence before the Court of any activity by Plaintiff, formal or informal, during that time period to demonstrate diligence in prosecuting this action against Defendant Gill.

The Court also notes that the remittitur was issued on March 26, 2026 and the Court’s (Hon. Adams) order which vacated the previous order and overruled AJ’s demurrer was issued on March 30, 2026. However, Plaintiff did not file her class certification motion nor does she provide any evidence of any discovery efforts or efforts to take Gill’s deposition, despite her assertions that the delay in efforts to move this case forward as to Gill were due to concerns regarding efficiency and practicality. Therefore, Plaintiff fails to establish reasonable diligence in prosecuting her action against Defendant Gill. (See Hill, supra, 181 Cal.App.3d at p. 6.)

As explained above, Plaintiff fails to demonstrate reasonable diligence to exclude the initial stay period and the pre-discretionary stay period—thus, it appears the five-year period

expired on October 19, 2024, at the latest. Thus, dismissal of this action is mandatory. (See Code Civ. Proc., § 583.360.)

Based on the foregoing, Defendant Gill’s motion to dismiss is GRANTED.

XLII. CONCLUSION

Defendant Gill’s motion to dismiss is GRANTED and the case against Defendant Gill is dismissed with prejudice pursuant to Code of Civil Procedure section 583.310.

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