Statement Case Management Conference

Cal. Super. - 6th Dist.July 2, 2018

Baker & McKenzie LLP 660 Hansen Way Palo Alto, CA 94304 +1 650 856 2400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No 18CV330523 JOINT CASE MANAGEMENT STATEMENT Todd K. Boyer, State Bar No. 203132 Baker & McKenzie LLP 660 Hansen Way Palo Alto, CA 94304 Telephone: +1 650 856 2400 Michael G. Leggieri, State Bar No. 253791 Caroline Pham, State Bar No. 305080 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 Telephone: +1 415 576 3078 Attorneys for Defendant SECURITY INDUSTRY SPECIALISTS, INC. Larry W. Lee (State Bar No. 228175) DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, California 90071 (213) 488-6555 (213) 488-6554 facsimile Attorneys for Plaintiff ALIVIA STRICKLIN (Additional Plaintiff’s Counsel on Next Page) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ALIVIA STRICKLIN, individually and on behalf of all others similarly situated, Plaintiff, v. SECURITY INDUSTRY SPECIALISTS, INC., a California Corporation; and DOES 1 through 50, Inclusive, Defendants. Case No. 18CV330523 Assigned for all purposes to: Hon. Brian C. Walsh / Dept. 1 JOINT CASE MANAGEMENT STATEMENT Date: April 19, 2019 Time: 10:00 a.m. Dept.: 1 Judge: Hon. Brian C. Walsh Complaint filed: July 2, 2018 Trial date: Not set Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/11/2019 10:19 AM Reviewed By: System System Case #18CV330523 Envelope: 2746241 18CV330523 Santa Clara - Civil System System Baker & McKenzie LLP 660 Hansen Way Palo Alto, CA 94304 +1 650 856 2400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No 18CV330523 JOINT CASE MANAGEMENT STATEMENT WILLIAM L. MARDER, ESQ. (CBN 170131) Polaris Law Group LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Tel: (831) 531-4214 Fax: (831) 634-0333 Dennis S. Hyun (State Bar No. 224240) HYUN LEGAL, APC 515 S. Figueroa St., Suite 1250 Los Angeles, California 90071 (213) 488-6555 (213) 488-6554 facsimile Edward W. Choi, Esq. SBN 211334 LAW OFFICES OF CHOI & ASSOCIATES 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 Email: edward.choi@choiandassociates.com Baker & McKenzie LLP 660 Hansen Way Palo Alto, CA 94304 +1 650 856 2400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No 18CV330523 JOINT CASE MANAGEMENT STATEMENT Plaintiff Alivia Stricklin (“Stricklin”) and Defendant Security Industry Specialists, Inc. (“SIS”) submit the following Joint Case Management Statement: I. BRIEF SUMMARY OF THE CASE A. Stricklin’s Section The present action is alleges that Plaintiff and the Aggrieved employees are entitled to PAGA penalties because Defendant: (a) failed to provide accurate, itemized wage statements to Plaintiff and Aggrieved Employees in violation of Labor Code § 226; (b) failed to pay overtime to Plaintiff and Aggrieved Employees for all hours worked, including without limitation, time that class members spent maintaining and cleaning uniforms in violation of Labor Code §§ 510, 558, 1194, and 1197.1; (c) failed to pay minimum wages to Plaintiff and Aggrieved Employees for all hours worked, including without limitation, time that class members spent maintaining and cleaning uniforms in violation of Labor Code §§ 558, 1194, 1197, and 1197.1; and (d) failed to provide off-duty meal and rest breaks to Plaintiff and Aggrieved Employees in violation of Labor Code §§ 226.7 and 512. On February 20, 2019, Plaintiff filed a First Amended Complaint (“FAC”) for PAGA penalties for Defendant’s alleged violations of California Labor Code §§ 201-203, 212-213, 226, 510, 1194, 1197, 1197.1, and 2802. Plaintiff’s FAC eliminates her request for penalties pursuant to Labor Code §558. B. SIS’s Section Stricklin’s Complaint seeks civil penalties pursuant to the Private Attorneys General Act, Cal. Lab. Code §§ 2698, et seq., based on alleged violations of Lab. Code §§ 201-203, 212-213, 226, 510, 558, 1194, 1197, 1197.1, and 2802. II. SUMMARY OF ORDERS FROM PRIOR CASE MANAGEMENT CONFERENCES AND PROGRESS OF COMPLIANCE A. Stricklin’s Section As set forth in Plaintiff’s Opposition to Defendant’s Motion to Compel Arbitration, Plaintiff’s February 20, 2019 First Amended Complaint eliminates her request for PAGA penalties under Labor Code §558. Thus, the action is now only for PAGA penalties and no longer subject to the ruling in Esparza v. KS Industries, LP, 13 Cal. App. 5th 1228 (2017). Accordingly, Defendant’s Motion to Compel must be denied pursuant to the Supreme Court’s decision in Iskanian v. CLS Baker & McKenzie LLP 660 Hansen Way Palo Alto, CA 94304 +1 650 856 2400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No 18CV330523 JOINT CASE MANAGEMENT STATEMENT Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014), given that Plaintiff’s First Amended Complaint expressly seeks only penalties on behalf of aggrieved employees and the State of California and, therefore, is not subject to arbitration. Plaintiff does not intend to pursue her individual claims in arbitration at this time. Pursuant to Williams v. Superior Court (2015) Cal. App. 4th 642, Plaintiff does not need to proceed to individual arbitration for her claims before proceeding on a PAGA Action. In Williams, the trial court ruled that Plaintiff must submit the “underlying controversy” to arbitration to determine whether Plaintiff was an “aggrieved employee” under the Labor Code with standing to bring a representative claim. (Id.) The Court of Appeals held, consistent with Reyes v. Macy's, Inc. (2011) 202 Cal.App.4th 1119 that the PAGA claim may not be brought solely on the employee's behalf, but must be brought in a representative capacity. (Id.) The Court of Appeal further held that Plaintiff brought the claim as an individual claim, but as a proxy or agent of the state and therefore did not need to submit any portion of his representative PAGA claim to arbitration. (Id.) As in Williams, in the present case, Plaintiff does not need to proceed with her individual Labor Code claims in arbitration and should be allowed to proceed with the current representative PAGA claim. B. SIS’s Section Pursuant to framework set forth in Esparza v. KS Industries, LP, 13 Cal. App. 5th 1228 (2017), SIS filed a motion to: (1) enforce the parties’ Arbitration Agreement; (2) compel Stricklin to pursue her claims for allegedly unpaid wages and other individual-specific relief in individual arbitration only; and (3) stay Stricklin’s PAGA representative claims for civil penalties that will be paid largely to the state pending completion of her individual arbitration. In this situation, Esparza addressed the potential for a plaintiff to choose to proceed only with claims for true civil penalties that will be paid largely into state coffers in order to avoid arbitration. The Court of Appeal provided the following directions: “if [the plaintiff] intends to (1) limit the claims pursued to PAGA representative claims seeking civil penalties paid largely into state coffers and (2) waive the claims for individualized relief (such as the recovery of unpaid wages pursuant to Lab. Code, § 558), then the litigation can proceed on those limited claims.” Esparza, 13 Cal. App. 5th at 1246 (emphasis added). On the other hand, “[i]f Employee intends to pursue those Baker & McKenzie LLP 660 Hansen Way Palo Alto, CA 94304 +1 650 856 2400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No 18CV330523 JOINT CASE MANAGEMENT STATEMENT claims, they must be arbitrated.” Esparza, 13 Cal. App. 5th at 1247. Stricklin has chosen not to waive her claims for civil penalties in the form of individualized relief. In fact, Stricklin’s opposition expressly reserved her right to pursue those claims. (Pl. Opp. to MTC Arb., 3:14-16 (“Nonetheless, to the extent the Esparza holding is overturned by the California Supreme Court, Plaintiff reserves the right to amend her complaint and re-assert the Labor Code § 558 claims.”) Accordingly, per Esparza, SIS seeks an order that: (1) compels Stricklin to pursue her claims for allegedly unpaid wages and other individual-specific relief in individual arbitration only; and (2) stays Stricklin’s PAGA representative claims for civil penalties that will be paid largely to the state pending completion of her individual arbitration. SIS’s motion is set for hearing on April 19, 2019, which is the same day as the Case Management Conference. III. LIKELY SIGNIFICANT PROCEDURAL AND PRACTICAL PROBLEMS A. Stricklin’s Section As set forth above, Plaintiff does not believe that she needs to pursue her individual claims in arbitration before she is allowed to proceed with the current representative PAGA claim under the Williams ruling. B. SIS’s Section As set forth above, has filed a motion to stay Stricklin’s PAGA representative claims for civil penalties that will be paid largely to the state pending completion of her individual arbitration. Additionally, when/if Stricklin has any PAGA representative claims for civil penalties that proceed following completion of her individual arbitration, SIS may demurrer to stay/abate those claims to the extent they are already being pursued against SIS in an earlier filed action, i.e., Andres Alejandro Mercado v. Security Industry Specialists, Inc., Santa Clara County Superior Court, Case No. 17CV320059. In particular, the Mercado lawsuit also seeks civil penalties under PAGA for alleged violations of Labor Code sections 226 and 510. See Code Civ. P. § 430.10(c); Lawyers Title Ins. Corp. v. Superior Court, 151 Cal. App. 3d 455, 460 (1980) (“An order of abatement issues as a matter of right not as a matter of discretion where the conditions for its issuance exist.”). Baker & McKenzie LLP 660 Hansen Way Palo Alto, CA 94304 +1 650 856 2400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case No 18CV330523 JOINT CASE MANAGEMENT STATEMENT IV. SUGGESTIONS FOR EFFICIENT MANAGEMENT A. Stricklin’s Section As set forth above, Plaintiff believes she is entitled to proceed with her representative PAGA claim. B. SIS’s Section As set forth above, has filed a motion to stay Stricklin’s PAGA representative claims for civil penalties that will be paid largely to the state pending completion of her individual arbitration. V. OTHER SPECIAL CONSIDERATIONS A. Stricklin’s Section None. B. SIS’s Section In January 2019, Stricklin dismissed her earlier-filed lawsuit, entitled Alivia Stricklin v. Security Industry Specialists, Inc., Santa Clara County Superior Court, Case No. 18CV323870, which had asserted putative class claims against SIS. Dated: April 10, 2019 BAKER & MCKENZIE LLP By:/s/ Michael G. Leggieri TODD K. BOYER CAROLINE PHAM MICHAEL G. LEGGIERI Attorneys for Defendant SECURITY INDUSTRY SPECIALISTS, INC. Dated: April 10, 2019 LAW OFFICES OF CHOI & ASSOCIATES By: Edward W. Choi [with permission] EDWARD W. CHOI Attorneys for Plaintiff ALIVIA STRICKLIN Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6846982-v1\SFODMS CASE NO. 18CV330523 PROOF OF SERVICE PROOF OF SERVICE I, Winnie Lee, declare as follows: I am over the age of eighteen years and not a party to the case. I am employed in the County of San Francisco, where the mailing occurs; and my business address is Baker & McKenzie LLP, Two Embarcadero Center, Suite 1100, San Francisco, CA 94111. On April 11, 2019, I served a copy of the within document(s): JOINT CASE MANAGEMENT STATEMENT to be served on the interested parties in this action by placing a true and correct copy thereof, enclosed in a sealed envelope, and addressed as follows: Larry W. Lee, Esq. DIVERSITY LAW GROUP, P.C. 515 South Figueroa Street, Suite 1250 Los Angeles, CA 90071 lwlee@diversitylaw.com William L. Marder, Esq. POLARIS LAW GROUP LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 bill@polarislawgroup.com Dennis S. Hyun, Esq. HYUN LEGAL, APC 515 South Figueroa Street, Suite 1250 Los Angeles, CA 90071 dhyun@hyunlegal.com Edward W. Choi, Esq. LAW OFFICES OF CHOI & ASSOCIATES 515 South Figueroa Street, Suite 1250 Los Angeles, CA 90071 Edward.Choi@choiandassociates.com  (BY U.S. MAIL) I placed each such sealed, prepaid envelope, for collection and mailing at Baker & McKenzie LLP, San Francisco, California, following ordinary business practices. I am familiar with the practice of collection for U.S. mail, said practice being that in the ordinary course of business, correspondence is picked up at our office the same day as it is placed for collection. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.  (BY FEDERAL EXPRESS) I placed each such sealed envelope, to be collected at Baker & McKenzie LLP, San Francisco, California, following ordinary business practices. I am familiar with the practice of Baker & McKenzie for collection and processing of overnight packages, said practice being that in the ordinary course of business, overnight packages are picked up by a representative of that company to be sent that same day.  (BY ELECTRONIC MAIL) I caused said document(s) to be transmitted to the email addressee(s) above through a designated electronic filing service provider. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at San Francisco, California on April 11, 2019. Winnie Lee