Henry v. Central Freight Lines, Inc.

Filing 111

ORDER signed by District Judge John A. Mendez on 7/27/2021 DENYING 96 Motion for Reconsideration and ORDERING sanctions. Plaintiffs counsel must send a check payable to the Clerk for the Eastern District of California for $250.00 no later than 7 days from the date of this order. (cc: Financial)(Huang, H)

Case 2:16-cv-00280-JAM-JDP Document 111 Filed 07/28/21 Page 1 of 8
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICKY HENRY,

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2:16-cv-00280-JAM-JDP

Plaintiff,

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No.

v.
CENTRAL FREIGHT LINES, INC.,

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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

Defendant.

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Ricky Henry (“Plaintiff”) worked for Central Freight Lines,

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Inc. (“Defendant”) as a truck driver from April 2014 to February

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2015.

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misclassified him, and other putative class member-truck drivers,

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as independent contractors to deny them benefits owed under

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California Wage Orders and the California Labor Code.

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previously granted in part and denied in part Defendant’s motion

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for summary judgment and denied Plaintiff’s cross-motion for

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summary judgment.

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Plaintiff alleges Defendant intentionally and illegally

The Court

See Order, ECF No. 87.

Plaintiff now requests reconsideration of that Order.

See

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Mot. for Recons. (“Mot.”), ECF No. 96.

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to hold that the ABC test, set forth in Dynamex Ops. W. Inc. v.

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Superior Court, 4 Cal.5th 903 (2018), shall apply to Plaintiff’s

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wage order claims and labor code claims.
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Plaintiff asks the Court

Id.

Defendant opposes

Case 2:16-cv-00280-JAM-JDP Document 111 Filed 07/28/21 Page 2 of 8
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the motion.

See Opp’n, ECF No. 102.

Plaintiff filed a reply.

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See Reply, ECF No. 104.

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Court DENIES Plaintiff’s motion for reconsideration.1

For the reasons discussed below, the

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I.

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BACKGROUND2

On June 13, 2019, the Court granted in part and denied in

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part Defendant’s motion for summary judgment and denied

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Plaintiff’s cross-motion for summary judgment.

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No. 87.

See Order, ECF

The Court found that the ABC test only applies to

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Plaintiff’s claims alleging violations of wage orders.

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deductions, waiting time penalties, wage statement penalties, and

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violations of the California Private Attorney General Act of 2004

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(“PAGA”) should be analyzed under the S.G. Borello & Sons, Inc.

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v. Dep’t of Indus. Rel., 48 Cal.3d 341 (1989) standard.

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22.

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Order at

Plaintiff’s other claims for reimbursement, unlawful

Id. at

On November 13, 2019, the Court granted Defendant’s motion

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to stay the action until the California Supreme Court answered

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the Ninth Circuit Court of Appeal’s certified question regarding

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the retroactivity of the court’s decision in Dynamex.

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ECF No. 105.

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certified question, holding that Dynamex does apply

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retroactively.

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10 Cal.5th 944, 948 (2021).

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See Order,

The California Supreme Court has since answered the

See Vazquez v. Jan-Pro Franchising Int’l, Inc.,
Accordingly, the Court’s stay

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for June 22, 2021.
2 The facts of the case are set forth in detail in the Court’s
previous order. See Order, ECF No. 87. They will not be reduced
into writing again here.
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Case 2:16-cv-00280-JAM-JDP Document 111 Filed 07/28/21 Page 3 of 8
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expired.

See Notice of Expiration of Stay, ECF No. 107.

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On October 21, 2019, the parties stipulated to withdrawing

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Plaintiff’s motion for class certification without prejudice to

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refile the motion following the Court’s rulings on the motion to

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stay and the instant motion.

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result, Plaintiff’s request for leave to withdraw without

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prejudice and refile the motion for class certification is moot.

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See Mot. at 12.

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See Stip., ECF No. 97.

As a

Plaintiff’s present motion for reconsideration is based upon

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an October 8, 2019, California Court of Appeals decision in

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Gonzales v. San Gabriel Transit, Inc., 40 Cal.App.5th 1131,

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(2019).

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test should apply to all his claims.

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also contends that the Court should reconsider its decision on

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the motion for summary judgment because of California Assembly

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Bill 5 (“AB5”), which went into effect on January 1, 2020.

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at 1–2.

Plaintiff argues that, pursuant to Gonzales, the ABC
See Mot. at 1.

Plaintiff

Id.

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II.

OPINION

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A.

Judicial Notice

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Plaintiff requests judicial notice of the full text of AB5,

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signed by Governor Newson on September 18, 2019.

See Pl.’s Req.

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for Judicial Notice (“RJN”), ECF No. 96-2.

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oppose this request.

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letter from the California Employment Law Council, dated October

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22, 2019, and filed with the California Court of Appeals, Second

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Appellate District, requesting depublication of Gonzales.

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Def.’s RJN, ECF No. 102-1.

Defendant does not

Defendant requests judicial notice of a

See

Plaintiff objects to this request.
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See Objs. to Def.’s RJN, ECF No. 103.

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the court of appeals, is the proper subject of judicial notice.

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As is AB5.

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objections to the substance of the letter because only its

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existence is judicially noticed.

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judicial notice of any disputed or irrelevant facts within

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either document.

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The letter, filed with

The Court need not address Plaintiff’s evidentiary

The Court does not take

Accordingly, Plaintiff and Defendant’s requests for
judicial notice are GRANTED.

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B.

Legal Standard

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A court may alter, amend, or reconsider its previous

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judgment pursuant to Federal Rule of Civil Procedure 59(e).

See

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Fed. R. Civ. P. 59(e); Sch. Dist. No. 1J, Multnomah Cty., Or. v.

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ACandS, Inc., et al., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Reconsideration is appropriate if: (1) there is an intervening

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change in controlling law; (2) the court is presented with newly

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discovered evidence; or (3) the court committed clear error and

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its decision was manifestly unjust.

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Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

389 Orange St. Partners v.

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C.

Analysis

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Plaintiff argues the Court should reconsider its prior

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decision based on an intervening change in controlling law.

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Mot. at 3, 5–6.

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ABC test “be applied to assess [wage order] violations and []

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[l]abor [c]ode violations that enforce [w]age [o]rder

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requirements.”

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that the ABC test be applied to his claims alleging violations

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of the following labor code provisions: (1) §§ 1194, 1197, and

See

Plaintiff contends that Gonzales requires the

Mot. at 5–6.

Specifically, Plaintiff requests

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Case 2:16-cv-00280-JAM-JDP Document 111 Filed 07/28/21 Page 5 of 8
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1197.1 for failing to pay minimum wage; (2) § 226 for failing to

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list hours worked on wage statements; (3) § 203 for failing to

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provide wages when due to terminated employees; and (4) § 2802

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for failing to reimburse employees for required fuel expenses.

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See Mot. at 9.

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controlling law; the relevant language in Gonzales is dicta;

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and, moreover, California courts of appeal are split on the

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issue.

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Defendant counters that Gonzales is not

See Opp’n at 5–8.

In Gonzales, the plaintiff was a driver for a transit

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company.

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transit company for allegedly misclassifying him as an

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independent contractor and violating various provisions of the

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labor code and wage orders as a result.

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whether the trial court improperly denied class certification,

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the Second District Court of Appeals found that the ABC test

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applies to labor code claims “which are either rooted in one or

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more wage orders, or predicated on conduct alleged to have

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violated a wage order.”

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claims should be analyzed using the Borello test.

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argument could be made that the Second District somewhat

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expanded the applicability of the ABC test beyond strict wage

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order violations.

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40 Cal.App.5th at 1139.

The plaintiff sued the

Id. at 1157.

Id.

In considering

Any other labor code
Id.

Thus, an

However, in Garcia v. Border Transp. Group, LLC, a lawsuit

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involving a taxicab driver, the Fourth District Court of Appeals

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found that the ABC test only applied to the plaintiff’s wage

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order claims and the Borello test applied to the plaintiff’s

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other claims.

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finding, the Fourth District explained that “Dynamex did not

28 Cal.App.5th 558, 570–71 (2018).

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In so

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purport to replace the Borello standard in every instance where

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a worker must be classified as either and independent contractor

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or an employee for purposes of enforcing California’s labor

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protections.”

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F.3d 953, 959 n. 4 (9th Cir. 2018)) (internal quotation marks

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omitted).

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recognized that different standards could apply to different

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statutory claims . . . .”

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Id. at 570 (citing Cal. Trucking Assn. v. Su, 903

“To the contrary, the [California] Supreme Court

Id.

Defendant is, therefore, correct that California courts of

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appeals are split on the applicability of the ABC test beyond

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strict wage order claims.

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Gonzales does not control this Court.

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“Decisions of the six [California] district appellate courts are

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persuasive but do not bind each other or [the Ninth Circuit].”

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Muniz v. United Parcel Service, Inc., 738 F.3d 214 (9th Cir.

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2013).

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the Court’s decision is required based upon an intervening

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change in controlling law.

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F.3d at 665.

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the Dynamex ABC test beyond the ‘one specific context’ endorsed

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by the California Supreme Court.”

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4 Cal.5th at 913-14); see also Haitayan v. 7-Eleven, Inc., 2021

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WL 757024, at *5 (C.D. Cal. 2021) (finding that, in Vazquez, the

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court also “emphasized that Dynamex applies only to wage

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orders.”) (emphasis in original).

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Defendant is also correct that
See Opp’n at 5.

As a result, Plaintiff cannot argue reconsideration of

See 389 Orange St. Partners, 179

The Court “declines to expand the application of

Order at 17 (quoting Dynamex,

Plaintiff’s claims for reimbursement, unlawful deductions,

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waiting time penalties, wage statement penalties, and violations

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of PAGA are not grounded in wage orders.
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See Haitayan, 2021 WL

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757024, at *5 (finding the Borello test applies to plaintiff’s

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§ 2802 claim); Thurman v. Bayshore Transit Mgmt., Inc., 203

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Cal.App.4th 1112, 1132 (2012) (holding that “PAGA does not

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create any private right of action to directly enforce a wage

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order” because “a wage order is not a statute.”); First Amended

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Complaint (“FAC”), ECF No. 1-6 (none of these claims in the FAC

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allege the violation of a wage order).

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on the labor code and must, therefore, be analyzed using the

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Borello test.

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They are instead based

This Court’s previous determination stands unless

and until a binding court says otherwise.
Plaintiff also argues that the Court should reconsider its

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order based upon AB5.

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not retroactive and, therefore, applies only to work performed

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after January 1, 2020, when the statute went into effect.”

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Haitayan, 2021 WL 757024, at *5 (citing Evangelatos v. Superior

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Court, 44 Cal.3d 1188, 1209 (1988) (“[I]n the absence of an

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express retroactivity provision, a statute will not be applied

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retroactively unless it is very clear from extrinsic sources

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that the Legislature of the voters must have intended a

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retroactive application.”)).

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performed well before January 1, 2020.

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consequence.

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This argument is without merit.

“AB5 is

The work at issue here was
Thus, AB5 is of no

In sum, the Court declines to reconsider its decision to

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apply the ABC test to Plaintiff’s wage order claims and the

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Borello test to all others.

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retroactively, but only to wage orders, and AB5 is not

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retroactive, the ABC test applies to Plaintiffs’ Wage Order

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claim and the Borello test applies to Plaintiffs’ Labor Code

See id. (“Because Dynamex applies

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Case 2:16-cv-00280-JAM-JDP Document 111 Filed 07/28/21 Page 8 of 8
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claim.”).

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D.

Sanctions

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Plaintiff exceeded the Court’s 5-page limit on reply

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memoranda.

See Reply; see also Order re Filing Requirements

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(Order), ECF No. 2-2.

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require the offending counsel (not the client) to pay $50.00 per

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page over the page limit to the Clerk of the Court.

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Moreover, the Court will not consider arguments made past the

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page limit.

Id.

Violations of the Court’s standing order

Order at 1.

In total, Plaintiff’s reply memorandum

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exceeded the Court’s page limit by 5 pages.

Plaintiff’s counsel

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must therefore send a check payable to the Clerk for the Eastern

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District of California for $250.00 no later than seven days from

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the date of this order.

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III.

ORDER

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For the reasons set forth above, the Court DENIES

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Plaintiff’s motion for reconsideration of the Court’s order

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granting in part and denying in part Defendant’s motion for

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summary judgment and denying Plaintiff’s cross-motion for summary

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judgment at ECF No. 87.

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IT IS SO ORDERED.
Dated: July 27, 2021

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