Brandon Roth v. Karma Lounge, LLC et al

However, neither Auberge’ Notice of Demurrer nor its Demurrer include “the common law rule of exclusive concurrent jurisdiction” as a ground for the relief sought, in violation of Rules of Court, rule 3.1110(a) and section 1010. The Court generally cannot grant different relief, or relief on different grounds, than that stated in the notice of motion. (See Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)

Moreover, Auberge’s argument in support of common law abatement depends on a finding that the instant action was filed after Fernandez v. SRGA. As noted above, it was not.

Auberge argues that the claims against it in the instant action do not relate back to the filing of the original complaint pursuant to the holding in Troche v. Daley (1990) 217 Ca.App.3d 403. That opinion holds that an amended complaint renaming a defendant who was originally named, but dismissed without prejudice, does not “relate[] back to [the date of the] filing of the original complaint for purposes of the statute of limitations.” (Id. at 412. Italics added.)

The statute of limitations is not at issue here. Thus, the holding in Troche v. Daley does not directly apply to the instant circumstances. The Court declines to apply it by analogy.

The PAGA claims asserted through the instant action are based on Ms. Pollastrini’s, and similarly situated employees’, employment with SRGA and/or Auberge. The allegations of the FAC are that SRGA and Auberge are joint or co- employers, as opposed to allegations of separate employment. Thus, the PAGA claims at issue in the instant litigation were never dismissed. The fact that Plaintiff dismissed Auberge, based on representations by its agents that it was not an employer of the subject population, does not, in the Court’s analysis, support a conclusion that the instant action is the later filed of the two actions for purposes of applying the common law rule of exclusive jurisdiction.

Finally, Auberge ignores that the common law rule applies “when two superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation” and “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 Co., supra, 224 Cal.App.3d at 786-87.) Here, both matters are pending before the same court.

Based on the foregoing, the demurrer is OVERRULED.

Brandon Roth v. Karma Lounge, LLC et al 25CV000801

MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING: The Motion is GRANTED.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to

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