This case was last updated from Los Angeles County Superior Courts on 11/17/2020 at 18:03:30 (UTC).

VENICE VALENCIA VS ESTATE OF TAJI ILBEGI ET AL

Case Summary

On 04/05/2018 VENICE VALENCIA filed a Labor - Other Labor lawsuit against ESTATE OF TAJI ILBEGI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO and RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0983

  • Filing Date:

    04/05/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PATRICIA D. NIETO

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff, Petitioner and Cross Defendant

VALENCIA VENICE

Defendants, Respondents and Cross Plaintiffs

CROWELL RAGAN WHITE

ESTATE OF TAJI ILBEGI AS REPRESENTED BY

DOES 1-100

ESTATE OF TAJI ILBEGI

DOES 1 THROUGH 100

ILBEGI TRUST SUB TRUST C

ILBEGI TRUST SUB TRUST A

ILBEGI TRUST SUB TRUST B

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SAYAS JOE C. JR. ESQ.

C. JOE SAYAS JR. LAW OFFICES OF

SAYAS CJOE JR

Defendant and Cross Plaintiff Attorneys

CRAIG S. SUNADA LAW OFFICES OF

SUNADA CRAIG

DEWAMES ERIC HENRI

Plaintiff and Cross Defendant Attorney

SAYAS CJOE JR

 

Court Documents

Notice - NOTICE OF UNAVAILABILITY OF COUNSEL

7/29/2020: Notice - NOTICE OF UNAVAILABILITY OF COUNSEL

Opposition - OPPOSITION OPPOSITION TO EX PARTE APPLICATION TO LIFT DISCOVERY BAN & VACATE SPECIAL MOTION TO STRIKE HEARING DATE OR SHORTEN TIME

7/10/2020: Opposition - OPPOSITION OPPOSITION TO EX PARTE APPLICATION TO LIFT DISCOVERY BAN & VACATE SPECIAL MOTION TO STRIKE HEARING DATE OR SHORTEN TIME

Brief - BRIEF SUPPLEMENTAL BRIEF IN SUPPORT OF ATTORNEYS FEES AND SANCTIONS

7/27/2020: Brief - BRIEF SUPPLEMENTAL BRIEF IN SUPPORT OF ATTORNEYS FEES AND SANCTIONS

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

7/28/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/22/2020

4/22/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/22/2020

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/20/2020

3/20/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/20/2020

Opposition - OPPOSITION DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION FROM DEFENDANT RAGAN WHITE CROWELL IN RESPONSE TO PLAINTIFF'S THIRD SET OF PRODUCTION DE

1/22/2020: Opposition - OPPOSITION DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION FROM DEFENDANT RAGAN WHITE CROWELL IN RESPONSE TO PLAINTIFF'S THIRD SET OF PRODUCTION DE

Proof of Service (not Summons and Complaint)

1/9/2020: Proof of Service (not Summons and Complaint)

Motion to Compel - MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION FROM DEFENDANT RAGAN WHITE CROWELL IN RESPONSE TO PLAINTIFF'S THIRD SET OF PRODUCTION DEMANDS AND FOR SANCTIONS; MEMORANDUM OF POIN

10/15/2019: Motion to Compel - MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION FROM DEFENDANT RAGAN WHITE CROWELL IN RESPONSE TO PLAINTIFF'S THIRD SET OF PRODUCTION DEMANDS AND FOR SANCTIONS; MEMORANDUM OF POIN

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO SHORTEN TIME; DECLARATIONS...)

11/5/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO SHORTEN TIME; DECLARATIONS...)

Separate Statement - SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION OF ISSUES

11/7/2019: Separate Statement - SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION OF ISSUES

Motion for Leave to File a Cross-Complaint

9/13/2019: Motion for Leave to File a Cross-Complaint

Answer

1/10/2019: Answer

Stipulation and Order - Stipulation and Order re: Doe Amendments filed by Plaintiff Venice Valencia

11/30/2018: Stipulation and Order - Stipulation and Order re: Doe Amendments filed by Plaintiff Venice Valencia

Amendment to Complaint (Fictitious/Incorrect Name)

10/24/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Amendment to Complaint (Fictitious/Incorrect Name)

10/26/2018: Amendment to Complaint (Fictitious/Incorrect Name)

NOT1CE OF POSTING JURY FEES

9/7/2018: NOT1CE OF POSTING JURY FEES

CIVIL DEPOSIT -

8/23/2018: CIVIL DEPOSIT -

82 More Documents Available

 

Docket Entries

  • 02/28/2022
  • Hearing02/28/2022 at 10:00 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 02/10/2022
  • Hearing02/10/2022 at 09:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/16/2021
  • Hearing11/16/2021 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 10/15/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion to Compel (Motion to Compel Depositions or in the Alternative to Set Deposition Schedules) - Not Held - Rescheduled by Party

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  • 10/07/2020
  • Docketat 08:30 AM in Department 24; Trial Setting Conference - Held

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  • 10/07/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion to Compel (Deposition of Plaintiff)

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  • 10/07/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion - Other (Motion to Lift Discovery Ban) - Not Held - Taken Off Calendar by Court

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  • 10/07/2020
  • DocketMinute Order ( (Hearing on Motion - Other Motion to Lift Discovery Ban; Trial...)); Filed by Clerk

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  • 10/06/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion to Compel Further Discovery Responses - Not Held - Rescheduled by Party

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  • 10/01/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion to Compel Further Discovery Responses - Not Held - Rescheduled by Party

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138 More Docket Entries
  • 06/21/2018
  • DocketNOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

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  • 06/21/2018
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 05/31/2018
  • DocketRETURN OF PROOF OF SERVICE

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  • 05/31/2018
  • DocketMiscellaneous-Other; Filed by Venice Valencia (Plaintiff)

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  • 04/25/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/25/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/05/2018
  • DocketSummons; Filed by Venice Valencia (Plaintiff)

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  • 04/05/2018
  • DocketSUMMONS

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  • 04/05/2018
  • DocketCOMPLAINT

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  • 04/05/2018
  • DocketComplaint; Filed by Venice Valencia (Plaintiff)

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Tentative Rulings

Case Number: BC700983    Hearing Date: July 28, 2020    Dept: 24

Plaintiff/Cross-Defendant Venice Valencia’s special motion to strike is DENIED.

Defendant/Cross-Complainant Estate of Taji Ilbegi and Ragan White Crowell’s associated motion to lift the discovery stay is MOOT.

On April 5, 2018, Plaintiff Venice Valencia (“Valencia”) filed a complaint against Defendants Estate of Taji Ilbegi (the “Estate”) and Ragan White Crowell (“Crowell”) in her person and representative capacity (collectively “Defendants”). Plaintiff alleges that she worked as a full-time housekeeping/assistant for Taji Ilbegi (“Ilbegi”) from January 2009 to her death in February 2018. Plaintiff performed her work duties on a live-in basis, including providing overnight care for the elderly, and often bedridden, Ilbegi. Plaintiff alleges Defendant violated several labor code sections regarding her wages. The Complaint alleges six causes of action for: 1) failure to pay overtime; 2) failure to pay minimum wage; 3) failure to pay wages for missed meal periods; 4) failure to pay wages for missed rest periods; 5) waiting time penalties; and 6) unfair competition.

On February 13, 2020, the Estate and Crowell (“Cross-Complainants”) filed a cross-complaint against Valencia (alternatively, “Cross-Defendant”) for fraud and negligent misrepresentation. The Cross-Complaint alleges that Valencia was doing business as Active American Healthcare Solutions ("AAHS”), a provider of in-home personal attendant services. On February 5, 2009, Valencia persuaded Ilbegi to enter a written agreement with AAHS. On January 1, 2010, at Valencia's insistence, AAHS and Ilbegi entered into an amended agreement, increasing the daily rate from $250 to $300. The agreements strongly imply that AAHS was a larger agency than merely fictitious business name of Valencia. Valencia represented that AAHS was an agency which provided services to other clients in addition to herself, and that AAHS would be responsible for employment functions, including payroll, withholdings and overtime compensation. She further represented that AAHS was licensed and bonded to the extent required by law, and would comply with all applicable laws with respect to its employees. All payments were made to AAHS, and not to Valencia personally. Valencia suppressed the fact that AAHS was a mere fiction and that she was the only individual providing services through AAHS.

On March 13, 2020, Valencia filed the instant special motion to strike. On July 17, 2020, Cross-Complainants filed an opposition. On July 23, 2020, Valencia submitted a reply.

There is also a pending motion by Cross-Complainants to lift the anti-SLAPP discovery stay to conduct discovery regarding the allegations of the Cross-Complaint. As will be discussed, this motion is moot.

Legal Standard

CCP section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].)

First Prong

Valencia moves to strike the entire cross-complaint on the grounds that the claims arise from her filing of the underlying wage and hour suit.

CCP section 425.16(e) defines protected acts as the following: 1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; 2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; 3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or 4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

A plain reading of the Cross-Complaint demonstrates that neither the claims nor the associated damages arise from the underlying wage and hour Complaint filed by Valencia, i.e. a petitioning activity within the meaning of the anti-SLAPP statute. Here, the Cross-Complaint alleges fraud causes of action arising from Valencia’s allegedly fraudulent contact practices. The allegations specifically state that Valencia allegedly defrauded Ilbegi through the service contracts by representing that Valencia was an employee of an organization experienced with caregiver services, AAHS, with all of the afforded protections associated with contracting with a reputable agency. (CC ¶¶ 6-7.) Simply put, this does not state Valencia is being sued for filing the underlying Complaint.

Valencia insists that the damages sought are for damages incurred by Cross-Complainants in Valencia’s underlying wage-and-hour lawsuit. (See Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347.) Valencia favorably cites to Philipson, and argues that the instant Cross-Complaint is analogous to the Philipson cross-complaint, which was properly stricken under the anti-SLAPP statute. As to the first prong, the Philipson decision held:

Philipson alleges as part of its fraud and negligent misrepresentation causes of action, that as a result of Gulsvig’s misrepresentations, it has been “sued in this action,” and was facing “possible exposure, attorneys fees and costs.” It further alleges that had it known of the falsity of Gulsvig’s misrepresentations, it “should not have been sued in this action.” Of course, the only one who has sued Philipson is Gulsvig herself, and thus these damage allegations are based on Gulsvig’s own petitioning activity.

(Id. at 359.)

No analogous facts, allegations or damages requests are present in the Cross-Complaint. Tellingly, Valencia fails to cite any vaguely similar language or request. Valencia repeatedly emphasizes that the Cross-Complaint alleges that she made her alleged misrepresentations

“while planning on making a further claim for unpaid overtime and other damages after Ilbegi’s death.” CC ¶ 7, at 3:19-21.) However, this misses the mark. This does not allege, as Valencia insists, that Cross-Complainants request damages related to the underlying wage and hour complaint. This simply alleges facts surrounding her motive, and does not request damages based on Valencia’s wage and hour complaint, such as attorneys fees or costs associated with the suit. The only damages requests states that “[a]s a proximate result of Valencia's fraud [i.e. contractual misrepresentations], cross-complainant has been damaged in amount of at least $300,000, subject to proof at trial.” (CC ¶ 8.) Thus, the damages are associated with the above discussed misrepresentations and damages therefrom, and not the wage and hour suit.

The standard begged by Valencia would put all cross-complaints within the ambit of the anti-SLAPP statute by merely being filed in response to a lawsuit. This, of course, is untenable and fails to further the purposes of the anti-SLAPP statute and litigation generally.

Accordingly, Valencia’s motion is DENIED. Because the Cross-Complaint did not arise from a petitioning activity, the Court does not reach any conclusions regarding the minimal merits of the suit. Additionally, as the Court does not reach the second prong, the request to lift the discovery stay is moot.

Sanctions Request

Cross-Complainants request sanctions per CCP section 425.16(c). This section states in relevant part: “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a [cross-complainant] prevailing on the motion, pursuant to Section 128.5.”

Code of Civil Procedure section 128.5 provides that a trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. “Actions or tactics” include almost any action in a litigation, except for sanctions which are governed by separate statutes. (See e.g. CCP §§ 128.5(e), 425.16(c).)

“Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. “Because the Legislature intended that the conditions for sanctions under the current version of section 128.5 mirror section 128.7, [the California Court of Appeal has held] that the objective standard used to evaluate section 128.7 sanctions motions applies to section 128.5.” (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1318.) “Although the objective standard of proof is easier to satisfy, the Legislature intended to ‘retain the extremely high proof required for such awards’ with its applicability lying with ‘truly egregious behaviors.’ ” (Id. at 1318-19.) An objectively reasonable attorney standard applies to this determination. (Id. at 1319.) “Whether a claim is meritless or for the sole purpose of harassment must be evaluated by examining whether the factual allegations of the claim had evidentiary support.” (Ibid.) The “ultimate burden of providing sanctionable conduct remains with the moving party.” (Id. at 1320.) The moving party must provide evidence sufficient to establish a prima facie [motion] is meritless or for the sole purpose of harassment. (Id. at 1319-1320.) If the court finds that this evidence has satisfied the moving party’s burden, then the burden shifts to the opposing party to refute the prima facie evidence. (Id. at 1320.)

The Court will hear argument on the issue of sanctions at the hearing on the motion.

Case Number: BC700983    Hearing Date: January 16, 2020    Dept: 24

Defendants Estate of Taji Ilbegi and Ragan White Crowell’s motion for summary adjudication is DENIED.

On April 5, 2018, Plaintiff Venice Valencia (“Plaintiff”) filed a complaint against Defendants Estate of Taji Ilbegi (the “Estate”) and Ragan White Crowell (“Crowell”) in her person and representative capacity (collectively “Defendants”). Plaintiff alleges that she worked as a full-time housekeeping/assistant for Taji Ilbegi (“Ilbegi”) from January 2009 to her death in February 2018. Plaintiff performed her work duties on a live-in basis, including providing overnight care for the elderly, and often bedridden, Ilbegi. Plaintiff alleges Defendant violated several labor code sections regarding her wages. The Complaint alleges six causes of action for: 1) failure to pay overtime; 2) failure to pay minimum wage; 3) failure to pay wages for missed meal periods; 4) failure to pay wages for missed rest periods; 5) waiting time penalties; and 6) unfair competition.

On August 19, 2019, Defendants moved for summary adjudication of the third and fourth causes of action, claiming Plaintiff was an exempt employee under IWC Wage Order 15-2001. On November 8, 2019, Plaintiff filed an opposition. On January 9, 2020, Defendants submitted a reply.

Summary Judgment Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP §437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP §437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP §437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)

In order to obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” (Ibid.) “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)

Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)

Evidentiary Objections

The parties submitted no written objections.

Request for Judicial Notice

Defendants request judicial notice of 1) California Department of Industrial Relations, Division of Labor Standards and Enforcement, ("DLSE"), Opinion Letter 2005.11.23, attached as Exhibit 1; and 2) California Assembly Floor Analysis, 2005 Wage Order 15, AB241, attached as Exhibit 2.

Plaintiffs request judicial notice of 1) DLSE Opinion Letter 1994.10.03-2, attached as Exhibit l; and 2) DLSE "Enforcement Policies and Interpretations Manual," section 55.3, attached as Exhibit 2.

These requests are GRANTED. (Evid. Code § 452(c).)

Issues Nos. 1 and 2: Personal Attendant Exemption

Defendants move for summary adjudication of the third and fourth causes of action claiming Plaintiff was an exempt employee.

The instant motion relies on whether the undisputed material facts show that Plaintiff met the exemption as a personal attendant. Wage Order No. 15 specifically provides that “personal attendants” are exempt from statutory overtime requirements. (8 Cal. Code Regs. § 11150(1)(B).) Wage Order 15 defines personal attendant as the following:

"Personal attendant" includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of "personal attendant" shall apply when no significant amount of work other than the foregoing is required.

(8 Cal. Code Regs. § 11150, ¶ 2.(J).)

The phrase “no significant amount of work” means that work other than “work in a private household to supervise, feed, or dress a person” cannot “exceed 20 percent of the total weekly hours worked” by the employee. (Lab. Code § 1451(d).)

As interpreted by the DLSE, the word “supervision” with respect to an elderly client generally refers to assisting the person with daily tasks to allow the individual to remain living at home. (Cash v. Winn (2012) 205 Cal.App.4th 1285, 1298.) The policy underlying the narrow personal attendant exemption rule seeks to control homecare costs for elderly individuals who need help with daily living activities and thus avoid the need for institutionalization, while maintaining the overtime pay requirements for all other types of domestic work. (Id. at 1299–1300.) In dicta, the Cash court noted that the parties defined those types of activities to include assistance with bathing, showering, accessing medicines, money management, and housework limited to the direct personal space of the supervised person. (Id. at 1298.)

Defendants present evidence that Plaintiff assisted with medications. (SSUF No. 21.) She would make Ilbeji's breakfast, lunch and dinner, even though she did not consider that to be "light cooking." (SSUF 2.) She also did light housekeeping which to her meant only dusting, not vacuuming. (SSUF 3.) She also cleaned Ilbeji's bathroom. (SSUF 4.) She bought the groceries, including Ilbeji's diapers and Ensure as well as paying the gardener, for which she was reimbursed directly. (SSUF 5.) Plaintiff assisted Ilbeji in bathing and changed her diapers daily. (SSUF 6.) She would sort out the household bills for payment, initially by Ilbeji and then by Crowell. (SSUF 7.) She would take Ilbeji to the bank before her fall at least once a week (SSUF 8.) After Crowell took over payment, she went to the bank at least once a month, sometimes thrice, to deposit checks from the Las Vegas property for Ilbeji (SSUF 9.) She would also take Ilbeji to doctor appointments and the hairdresser until her fall in 2012, after which she was almost bedridden. (SSUF 10.) She also would also help Ilbeji with writing cards, sending gifts to friends and writing checks and remembering tasks that had to be done. (SSUF 22.)

Defendant argues that these duties all fall within the personal assistant definition. However, Defendant also points out that she performed duties that fell outside of the definition, i.e. other work. Plaintiff testified that she spent an hour a month cleaning up rain gutters (SSUF 11), an hour a month washing up the walls of the house (SSUF 12), an hour a month cleaning drapery (SSUF 13), an hour a month trimming outside plants and sweeping outside (SSUF 14), an hour a week vacuuming the whole house (SSUF 15), two hours a week dusting the house (SSUF 16), an hour and a half mopping the floor (SSUF 17) and an hour each week cleaning the bathrooms (SSUF 18). Defendant concludes that because the above only amounted to 6.5 hours of work, out of the 168-work week, this amounts to far less than the 20% necessary for the exception to the exemption.

The Court does not find that the above facts and argument meet Defendant’s initial burden. “ ‘The inquiry into whether an employee's household work is related to the care of the individual is one of the most confused aspects of the jurisprudence regarding home healthcare workers.’ ” (Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 942, citing Molly Biklen, Healthcare in the Home: Reexamining the Companionship Services Exemption to the Fair Labor Standards Act (2003) 35 Colum. Hum. Rts. L.Rev. 113, 142.) Determining whether all of the elements of the exemption have been established is a fact-intensive inquiry. (United Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1014–1015 [italics added].) The appropriateness of any employee's classification as exempt must be based on a review of the actual job duties performed by that employee. (Ibid.) Exemptions are narrowly construed. (Ibid.)

Given evidence presented above, the Court cannot conclude that Defendant’s “assumed” 168-hours of work per week is supported. (See Mot. p. 6:3-8.) Perhaps Defendants are referring to the Complaint’s allegation that Plaintiff “was expected to and did perform work on a 24-hour basis, 7 days a week…” (Compl., ¶ 17.) This does not allege that Plaintiff performed 24 hours’ worth of work at any point—only that she performed work “on a 24-hour basis” meaning at any time during the day. The only allegations concerning amounts worked are general allegations that she worked “in excess of 9 hours in a workday and/or 5 days in a week…” (See Compl., ¶ 2.) Thus, there is no evidence on the record to support this figure.

To put it simply, Defendant has not provided the necessary evidence regarding how many hours Plaintiff worked per week. Important to this analysis is the relative percentage of the “supervise, feed, or dress” work and the “other” work performed by Plaintiff. (See Lab. Code § 1451(d).) By the plain language of the statute, there is no third category of work. Work either meets the definition of personal attendant, or it is other work. (Ibid.) Defendant only cites to a handful of various tasks, with no evidence indicating the time spent on those tasks. (See e.g. SSUF 2-10.) While Defendant does assign hours spent on the “other” work categories (see SSUF 10-18), without the counter balance of the time spent on the personal attendant categories, the Court cannot determine that the hours spent on the identified “other work” exceeds 20% of the relative work performed, or how many hours Plaintiff worked per week. This is an essential fact required for the exemption. Without it, the Court has no factual framework to calculate percentages. Defendants therefore fail to meet their initial burden.

Accordingly, Defendant’s motion is DENIED.

Moving party is ordered to give notice.

______________________________________________________________________________________________

Defendants Estate of Taji Ilbegi and Ragan White Crowell motion for leave to file a Cross-Complaint is GRANTED.

On April 5, 2018, Plaintiff Venice Valencia (“Plaintiff”) filed a complaint against Defendants Estate of Taji Ilbegi (the “Estate”) and Ragan White Crowell (“Crowell”) in her person and representative capacity (collectively “Defendants”). Plaintiff alleges that she worked as a full-time housekeeping/assistant for Taji Ilbegi (“Ilbegi”) from January 2009 to her death in February 2018. Plaintiff performed her work duties on a live-in basis, including providing overnight care for the elderly, and often bedridden, Ilbegi. Plaintiff alleges Defendant violated several labor code sections regarding her wages. The Complaint alleges six causes of action for: 1) failure to pay overtime; 2) failure to pay minimum wage; 3) failure to pay wages for missed meal periods; 4) failure to pay wages for missed rest periods; 5) waiting time penalties; and 6) unfair competition.

On August 19, 2019, Defendants moved for summary adjudication of the third and fourth causes of action, claiming Plaintiff was an exempt employee under IWC Wage Order 15-2001. On November 8, 2019, Plaintiff filed an opposition. On January 9, 2020, Defendants submitted a reply.

On September 13, 2019, Defendants filed the instant motion for leave to file a cross-complaint. On January 3, 2020, Plaintiff filed an opposition. On January 9, 2020, Defendants filed a reply.

Legal Standard

Leave of court is required to file a compulsory cross-complaint when it is not filed before or at the same time as the answer. (CCP § 428.50(a), (c).) Where a party seeks leave to file a compulsory cross-complaint, whether due to oversight, inadvertence, mistake, neglect, or other cause, leave must be granted anytime during the course of litigation so long as the defendant acted in good faith. (CCP § 426.50.) Leave should be liberally granted to avoid forfeiture of causes of action. (Ibid.)

“Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.) “[The] principle of liberality requires that a strong showing of bad faith be made in order to support a denial of the right to file a cross-complaint under this section.” (Foot's Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 902.) To establish bad faith, the opposing party must show “actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake ..., but by some interested or sinister motive[,] ... not simply bad judgment or negligence, but rather ... the conscious doing of a wrong because of dishonest purpose or moral obliquity; ... [bad faith] contemplates a state of mind affirmatively operating with furtive design or ill will.” (Id. at 100.) While the good faith requirement gives courts a “modicum of discretion,” the law strongly favors granting leave. (Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.)

Discussion

Defendant moves for leave to a file a cross complaint, alleging two causes of action for fraud. Plaintiffs contend that Defendant brought this motion in bad faith, because he failed to move for a cross-complaint in a timely manner, and that the substantive allegations of the cross-complaint were made in bad faith. Plaintiffs argue that Defendant should have been aware of the instant causes of action since Plaintiff’s discovery responses in October 2018 or January 2019.

Here, the Court does not find any evidence of bad faith on part of Defendants in terms of requesting leave. The facts presented by the papers do not come close to the bad faith demonstrated in Gherman v. Colburn (1977) 72 Cal.App.3d 544. At worst, Defendants delayed in making the instant request for at most 10 months. However, no prejudice is apparent from this delay. The delay itself does not demonstrate bad faith, unlike the complainants in Gherman, who moved for leave on the eve of trial. The filing of a cross-complaint months prior to trial should not be said to be a mere tactical or strategic maneuver. At the very least, the presented bad-faith argument does not support a “strong showing” of bad faith. Plaintiff’s bad faith arguments essentially boil down to litigating the cross-complaint in the context of this motion. The merits of the cross-complaint may be challenged through the appropriate procedural means.

Plaintiffs do not provide any substantive prejudice they would suffer as a result of leave. Plaintiffs’ arguments regarding the sufficiency of the allegations do not warrant denial of leave. Given that great liberality should be exercised when grating leave to avoid forfeiture, Defendant’s motion is GRANTED.

Moving party is ordered to give notice.