Conference Case ManagementCal. Super. - 6th Dist.September 26, 2017I AEGIS LAW FIRM, PC KASHIF HAQUE, State Bar No. 218672 SAMUEL A. WONG, State Bar No. 217104 JESSICA L. CAMPBELL, State Bar No. 280626 SIMON KWAK, State Bar No. 297362 4 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 6 Facsimile: (949) 379-6251 Attorneys for Plaintiff Benjamin F. Gonzales, individually, and on behalf ofall others similarly situated. 10 12 LITTLER MENDELSON, P.C. MICHAEL F. MCCABE, State Bar No. 111151 KRISTIN E. HUTCHINS, State Bar No. 184429 JULIE A. STOCKTON, State Bar No. 286944 EMILY A. MERTES, State Bar No. 296743 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 433-1940 Facsimile: (310) 201-5219 13 Attorneys for Defendant Flagship Facility Services, Inc. 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 17 FOR THE COUNTY OF SANTA CLARA Case No. 17CV316313BENJAMIN F. GONZALEZ, individually and on behalf of all other aggrieved 19 employees, Assignedfor allpurposes to: Hon. Brian C. 8'alsh Dept. 120 Plaintiff, 21 vs. 22 FLAGSHIP FACILITY SERVICES, INC4 23 and DOES I through 20, inclusive, JOINT CASE MANAGEMENT CONFERENCE STATEMENT Date: September 20, 2019 Time: 10:00 a.m. Dept.: IDefendants. 25 26 27 28 4822-3130-7621.1 063836.1064 JOINT CASE MANAGEMENT CONFERENCE STATEMENT Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/13/2019 5:43 PM Reviewed By: System System Case #17CV316313 Envelope: 3392041 17CV316313 Santa Clara - Civil System System Plaintilf Benjamin F. Gonzales ("Plaintiff*) and Defendant Flagship Facility Services, Inc. ("Defendant") (collectively, the "Parties") submit this Joint Statement in advance of the Case Management Conference scheduled for September 20, 2019, as follows: 4 1. RELATED LITIGATION The Parties identify the following pending litigation: a. Soriano v. Flagship Facility Services, Inc. 7 Case No.: 17CV316438 10 Court: Santa Clara Superior Court - Dept. 1 Filed: September 28, 2017 Status: The settlement received final approval and settlement checks have been sent. 12 13 14 15 16 17 18 19 20 21 22 23 b. Rivera v. Flagship Facility Services, Inc. Case No.: 18CV329704 Court: Santa Clara Superior Court - Dept. 1 Filed: June 8, 2018 Status: Pending. e. Ceron De Orozco v. Flagship Facility Services, Inc. Case No.: 37-2018-00040481-CU-OE-CTL (subsequently removed) Court: Originally filed in San Diego Superior Court, Dept. C-69 Filed: August 13, 2018 Status: Case settled at mediation and the parties are drafting the long-form settlement agreement. 2. PARTIES'OSITIONS REGARDING RELATED CASES 24 a. PlaintifPs Position: 25 26 27 28 Concerns with Soriano Settlement: The Court granted preliminary approval of the class action settlement in Soriano after further briefing on motions to intervene and the issues of the vague and overbroad release contained in the Soriano settlement. Specifically, the parties in Soriano represented to the Court and counsel for all parties in the related actions that the 4822-3130-2621.1 0638363034 JOINT CASE MANAGEMENT CONFERENCE STATEMENT 1 Soriano settlement would not include Plaintiff Gonzales nor Ceron, a representation that was 2 noted in the Court's Order After Hearings on November 2, 2018, entered on November 5, 2018 3 (see p. 6, fn.l). Based on these representations, Plaintiff Gonzales did not renew his motion to 4 intervene. Recently, however, Plaintiff Gonzales received a notice of settlement identifying him 5 as a class member in the Soriano settlement. To preserve his claims and standing as a putative 6 class representative in his pending action, Plaintiff had no choice but to opt out of the 7 settlement by submitting a request for exclusion before May 31, 2019. 8 Rivera and Ceron de Orozco: With respect to Rivera and Ceron de Orozco, Plaintiff 9 contends that these cases represent a subset of the putative class in Plaintiff Gonzales'ction. 10 Plaintiff agrees that to the extent there are overlapping and common issues, that coordination of 11 discovery would be appropriate. Plaintiff Gonzales has been meeting and conferring with 12 Defendant's counsel on narrowing the scope of discovery to the Facilities department in which 13 Plaintiff worked and the Culinary department. 14 b. Defendant's Position: 15 The Rivera and Ceron de Orozco lawsuits both involved non-exempt janitorial 16 employees, a subset of the putative class in Gonzrdes (with the exception of slight variances in 17 class periods, depending on the filing date of each action). Defendant contends that discovery 18 in the Gonzales matter should not include janitorial employees, as these employees'laims are 19 being settled through the Ceron de Orozco settlement. 20 Counsel for Defendant confirmed with the Settlement Administrator that the Notice of 21 Class Settlement in Soriano was not sent to plaintiff in the Gonzales case. Counsel for 22 Defendant provided counsel for Gonzales with information suggesting that Notice of Settlement 23 was sent to plaintiff Gonzales'on, who also worked for Defendant and who is a Soriano 24 settlement class member. Counsel for Defendant is unaware of anyone other than Soriano 25 settlement class members receiving Notice of the Class Settlement. 26 3. PLEADINGS & PROPOSED BRIEFING SCHEDULE FOR DEMURRER 27 a. PlaintifFs Position: 28 The Second Amended Complaint is the operative complaint and seeks class-wide relief 4822-3150-7621.1 063836.1054 -2- JOINT CASE MANAGEMENT CONFERENCE STATEMENT against Defendant for failing to pay all wages, including minimum and overtime wages for off- the-clock work for working through breaks and for being placed on on-call duty, failing to provide meal and rest breaks or premiums in lieu thereof, failing to provide accurate itemized wage statements, and failing to pay all wages upon the separation of employment. Additionally, Plaintiff seeks to recover civil penalties pursuant to PAGA. Plaintiff disagrees with Defendant's position that Plaintiff lacks standing to pursue the Sixth Cause of Action for failure to pay all wages due upon separation of employment. b. Defendant's Position: 10 Plaintiff Gonzales was still employed at the time this action was filed, and did not separate from his employment until after this lawsuit had commenced. Labor Code section 203 permits waiting time penalties for up to 30 days, or until a lawsuit on the unpaid wages is filed. 12 Because this lawsuit for unpaid wages was filed while Mr. Gonzales was still employed, he is 13 not entitled to any waiting time penalties. 14 Defendant elected not to file a demurrer to the Sixth Cause of Action and filed an 15 answer to the Second-Amended Complaint, but will move for summary adjudication at an 16 appropriate time regarding this issue. 17 4. STATUS OF DISCOVERY I STIPULATION FOR PROTECTIVE ORDER 18 Discovery was stayed in this action since the transfer of the action to the Complex Civil 19 Litigation Department on September 26, 2018. The discovery stay was lifted on March 15, 20 2019. 21 Prior to the transfer of this action to the Complex Civil Litigation Department, the 22 Parties submitted a Stipulation for Protective Order to Department 9. For reasons unknown to 23 the Parties, the stipulation was denied. The Parties re-submitted the stipulation to this Court and 24 the Protective Order has been signed and filed. 25 a. PlaintifP s Position: 26 Plaintiff propounded an initial set of written discovery as to all of Defendant's non- 27 exempt employees before the transfer of this action to this Department. After the Court lifted 28 the discovery stay and in light of the Court's comments at the last Case Management 4022-3150-7621.1 063B36 1054 -3- JOINT CASE MANAGEMENT CONFERENCE STATEMENT 1 Conference urging the parties to seek an efficient method of litigating the related cases, the 2 Parties have been meeting and conferring on narrowing the scope of discovery to Plaintiff's 3 department. Any limitation on the scope of discovery at this time, however, is without prejudice 4 to Plaintiff s ability to seek additional discovery as to all non-exempt employees. 5 As stated in Defendant's position below, Plaintiff is agreeable to the 15% sampling of 6 employees'ontact information, timekeeping records, and pay records for the Facilities and 7 Culinary department. To further the discovery process, Plaintiff requires Defendant to provide 8 the list of employees to select the sampling for the Culinary employees. With respect to the 9 Facilities employees, Defendant must confirm whether a revised employee list will be 10 necessary. 11 Plaintiff requests that Defendant provide at the conference the following: (1) 12 confirmation of whether a revised list for Facilities employees will be necessary to select a new 13 sampling; (2) the date that Defendant will provide the list of Culinary employees for the 14 sampling; and (3) how long it will take for Defendant to produce the information and records 15 for the sample group. 16 b. Defendant's Position: 17 The parties have agreed to a sampling protocol for a segment of the putative class of 18 Facilities and Culinary employees. Defendant agreed to provide the contact information, wage 19 and time records for a random sampling of 15% ofnon-exempt Facilities and Culinary employees 20 who worked at any time between September 26, 2013 and the present. Counsel for Defendant 21 provided plaintifFs counsel with the employee identification numbers of the relevant subset of 22 putative class members and Plaint''s counsel provided the list of the 15% randomly selected 23 putative class members. 24 5. PHASING OF CLASS DISCOVERY 25 a. Plaintiff s Position: 26 When lifting the stay on discovery, the Court specifically indicated that the stay is lifted 27 for all purposes, without phasing as to class certification and liability issues because despite 28 being the first-filed case, this action has been stayed while significant discovery and progress 4822-3150-2621.1 063836 1054 -4- JOINT CASE MANAGEMENT CONFERENCE STATEMENT 1 has been made in Ceron de Orozco. 2 b. Defendant's Position: 3 Although the Court has lifted the discovery stay, Defendant believes that discovery 4 should be prioritized focusing on whether the putative class can be certified. The sampling 5 protocol being discussed and implemented by the parties for Flagship's Facilities and Culinary 6 group ofemployees is directed at this objective. 7 6. ARBITRATION AGREEMENTS 8 The Parties are not aware of an arbitration agreement applicable to Plaintiff's 9 employment with Defendant. However, Defendant represents that many putative class 10 members have signed arbitration agreements containing class action waivers. 11 7. ALTERNATIVE DISPUTE RESOLUTION 12 a. PlaintifP s Position: 13 Plaintiff is open to participating in a private mediation session as long as Defendant is 14 willing to produce adequate information for Plaintiff to evaluate the value of the case. Plaintiff 15 provided Defendant with an overview of the theories of liability raised by PlaintifTs action. 16 Plaintiff is also agreeable to limiting the scope of discovery at this time, without prejudice, 17 conscious ofpossible duplicative discovery. 18 b. Defendant's Position: 19 Defendant is willing to engage in mediation following Plaintiff's articulation of his 20 theories of liability that are amenable to class certification, if any. 22 Dated: September 13, 2019 AEGIS LAW FIRM, PC 23 24 25 Simon Kwak Attorneys for Plaintiff Benjamin F. Gonzales 26 /// 27 /// 28 4822-3150-7621.1 063836.1054 -5- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Dated: September 13, 2019 LITTLER MENDELSON, PC By: /s/ Emilv A. Mertes Michael F. McCabe Kristin E. Hutchins Julie A. Stockton Emily A. Mertes Attorneys for Defendant Flagship Facility Services, Inc. 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4822-3150-7621,1 063836.1054 -6- JOJNT CASE MANAGEMENT CONFERENCE STATEMENT CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On September 13, 2019, I served the foregoing document entitled: ~ JOINT CASE MANAGEMENT CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 on all the appearing and/or interested parties in this action by placing the original 2 a true copy thereof enclosed in sealed envelope(s) addressed as follows: Michael McCabe Kristin E. Hutchins Julie A. Stockton Emily A. Mertes LITTLER MENDELSON, PC 333 Bush Street, 34th Floor San Francisco, CA 94104 Attorneysfor Defendant: Flagship Facility Services, Inc. (BY MAIL) I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. Ii 1013(a); Fed. R Civ. Proc. 5(a); Fed. R Civ. Proc. 5(c).) (BY OVERNIGHT MAIL) I am personally and readily familiar with the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. Ij 1013(c); Fed. R Civ. Proc. 5(c).) (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission via the above listed email addresses on the date below. (Cal. Code Civ. Proc. Ij 1010.6(6); Fed. R Civ. Proc. 5(b)(2)(E); Fed. R Civ. Proc. 5(b)(3).) I7 (BY PERSONAL SERVICE) I delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Ci v. Proc. $ 1011; Fed. R Civ. Proc. 5(b)(2)(A).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 25 26 27 28 Executed on September 13, 2019, at Irvine, California. Dgr CERTIFICATE OF SERVICE