Response ReplyCal. Super. - 6th Dist.March 18, 2020L11$UJN \OOOVON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ZOCV365252 Santa Clara - Civil AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar N0. 2 1 7 1 04 KASHIF HAQUE, State Bar N0. 218672 JESSICA L. CAMPBELL, State Bar N0. 280626 ALEXANDER G.L. DAVIES, State Bar No. 328125 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Email: icampbell@aegislawfirm.com adavies@aegislawfirm.com Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/30/2020 11:53 AM Reviewed By: S. Vera Case #20CV365252 Envelope: 5022851 Attorneys for Plaintiff Victor Flores, individually, and 0n behalf of all others similarly situated. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA VICTOR FLORES, individually and on behalf of all others similarly situated, Plaintiff, vs. ACCO ENGINEERED SYSTEMS, INC.; and DOES 1 through 20, inclusive, Defendant. Case No. 20CV365252 Assignedfor allpurposes t0.“ Hon. PatriciaM Lucas Dept. 3 PLAINTIFF’S RESPONSE TO DEFENDANT’S OPPOSITION T0 PLAINTIFF’S REQUEST TO LIFT DISCOVERY STAY Date: October 7, 2020 Time: 1:30 pm. Dept: 3 . s/era PLAINTIFF’S RESPONSE TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S REQUEST TO LIFT THE DISCOVERY STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendant’s Opposition concedes “the agreement that covers Plaintiff’s employment does not contain an arbitration agreement.” (Opp. at 4210-1 1.) This is the only information the Court needs to lift the discovery stay, Which Defendant concedes was only kept in place t0 “to allow ACCO to complete its investigation whether [Sic] Plaintiff was subject t0 a collective bargaining agreement that contained a class action waiver.” (Opp. at 427-8.) The fact that Defendant concedes these points but still opposes Plaintiff’s request to lift the discovery stay proves it is simply stalling to impede Plaintiff’s right t0 prosecute this case. The Court should put a stop to this gamesmanship and allow the case, filed March 18, 2020, t0 finally begin discovery. II. DEFENDANT’S OPPOSITION IS PROCEDURALLY DEFECTIVE The Court should refuse t0 consider Defendant’s Opposition on procedural grounds because it failed t0 comply With the CCP and the Court’s Orders. On September 29, 2020, Plaintiff discovered that Defendant had filed its Opposition but failed t0 electronically serve Plaintiffs counsel as required by the Court’s initial Minute Order Deeming the Case Complex (“Minute Order”), dated May 8, 2020. Defendant also failed t0 serve its Opposition by Overnight Mail to ensure delivery to the other party no later than the close of the next business day, as required by California Code 0f Civil Procedure § 1005(0). Therefore, Defendant’s Opposition was not properly served and should be disregarded by the Court. III. RESPONSE TO DEFENDANT’S ARGUMENTS A. Plaintiff’s Motion Is Not Procedurally Defective. In its Opposition, Defendant claims no Memorandum of Points and Authorities appears in the Court’s file or was served on Defendant. (Opp. at 4: 16-17.) However, this is feigned ignorance because Defendant knows Plaintiff simply titled the Memorandum 0f Points and Authorities as “Motion” and properly filed it With the court and electronically served it 0n Defendant 0n September 10, 2020, and currently appears in the Court’s file as a document titled “Motion.” Defendant cites n0 authority requiring a different title for the document with Plaintiff’s arguments, and it clearly read and responded t0 Plaintiff’s Motion. Again, this is pure gamesmanship that will permeate this case unless the Court puts a stop t0 this behavior. -1- PLAINTIFF’S RESPONSE TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S REQUEST TO LIFT THE DISCOVERY STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff’s Motion Was Not Required t0 Present a Discovery Plan Defendant further claims Plaintiff’s Motion should be denied due to the failure to present a discovery plan, as allegedly required by the Minute Order. This is not correct. The Minute Order required the Parties t0 meet and confer regarding discovery issues and to address these concerns in a joint statement. Plaintiff completed these requirements and presented his discovery plan in the Joint Initial Case Management Statement, filed July 17, 2020. Since then, Plaintiff has requested, 0n numerous occasions, that Defendant stipulate t0 lifting the discovery stay and to begin discovery With immediate effect in the absence of an applicable arbitration agreement. Furthermore, Plaintiff only plans t0 seek routinely discoverable information, necessary t0 analyze a wage and hour class action, including: time records for the putative class members, payroll records for the putative class members and Defendant’s wage and hour policies and practices during the class period. In addition t0 claiming that n0 discovery plan was presented, Defendant also claims Plaintiffs discovery plan is defective because Plaintiff does not believe formal phasing is necessary. However, the Parties disagreement as t0 how discovery should be conducted, does not render Plaintiff” s Motion invalid. Defendant contends there are significant legal issues that must be resolved prior to opening general discovery, but fails t0 explain these legal issues and will be free t0 raise any defenses at the pleading stage in its responsive pleading. Defendant’s main contentions regarding delaying and phasing of discovery seem to result from their mistaken belief that Plaintiff must offer specific facts proving his allegations before discovery is allowed and that Plaintiff’ s causes of action are not sufficiently plead. First, Plaintiff’s Complaint and First Amended Complaint are both sufficiently plead under California’s notice pleading standard. Second, under Williams, Plaintiff does not have to prove the factual basis of his claims before getting discovery, as this would be putting the cart before the horse. Williams v. Superior Court (Marshalls of CA, LLC), 3 Ca1.5th 531, 551 (2017). Accordingly, the Court should order Defendant t0 stop these frivolous delay tactics and grant Plaintiff’s Motion to lift the discovery stay With immediate effect. -2- PLAINTIFF’S RESPONSE TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S REQUEST TO LIFT THE DISCOVERY STAY OO\IO\UI-I>UJN KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the reasons stated above, the Court should deny Defendant’s Opposition, grant Plaintiffs Motion in its entirety, and enter an order lifting the stay 0f Plaintiff’s individual, Class Action, and PAGA claims. Dated: September 30, 2020 AEGIS LAW FIRM, PC kv/Qv Alexander G.L. Davies Attorneys for Plaintiff -3- PLAINTIFF’S RESPONSE TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S REQUEST TO LIFT THE DISCOVERY STAY \OOOQONUI-PUJNH NNNNNNNNNt-I-Ht-I-Ht-I-Ht- OONQM$UJNHOKOOOQONMJ>WNHO CERTIFICATE OF SERVICE I, the undersigned, am employed in the County 0f Orange, State 0f California. I am over the age of 18 and not a party t0 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 30, 2020, I served the foregoing document entitled: o PLAINTIFF’S RESPONSE TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S REQUEST TO LIFT DISCOVERY STAY 0n all the appearing and/or interested parties in this action by deliveringD the original E a true copy thereof on the party(ies) addressed below as follows: Richard A. Leasia Benjamin A. Emmert LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor San Jose, CA 95 1 13-2303 Telephone: 408.998.4150 Facsimile: 408.288.5686 rleasia@littler.com bemmert littler.com Attorneysfor Defendant: ACCO ENGINEERED SYSTEMS, INC. D (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 0n that same day With postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that 0n motion of the party served, service is presumed invalid if postage cancellation date 0r postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(0).) D (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 t0 be deposited for delivery t0 a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(0).) E (BY ELECTRONIC TRANSMISSION) I caused said document(s) t0 be served Via electronic transmission Via the above listed email addresses on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) D (BY PERSONAL SERVICE) I delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed. R. Civ. Proc. 5(b)(2)(A).) /// /// /// CERTIFICATE 0F SERVICE \OOOQONUI-PUJNH NNNNNNNNNt-I-Ht-I-Ht-I-Ht- OONQM$UJNHOKOOOQONMJ>WNHO I declare under penalty of peljury under the laws 0f the State of California that the foregoing is true and correct. Executed 0n September 30, 2020, at Irvine, California. -2- CERTIFICATE OF SERVICE