Statement Case Management ConferenceCal. Super. - 6th Dist.November 23, 2020.5 QQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20CV373939 Santa Clara - Civil PATRICK WILLIAM DOYLE, SBN 3 1 7791 522 Utah Street San Francisco, California 941 10 Phone: 415 926 9885 Email: 1aw@patrickwdovle.com Attorney for Plaintiff CRISTINA GONZALEZ DANIEL A. MENENDEZ, SBN 260822 LAW OFFICE OF DANIEL A MENENDEZ 1261 Lincoln Avenue, Suite 208 San Jose, CA 95125 Tel. (408) 479-4969 Fax (408) 273-6912 daniel@siliconvallevlegalcom Attorneys for Defendants LUONG PHAM QUYNH NGUYEN GILROY GAS & MINI-MART, INC. System Syst Electronically Filed by Superior Court of CA, County of Santa Clara, on 7l7l2021 10:23 AM Reviewed By: System System Case #20CV373939 Envelope: 6793244 SUPERIOR COURT IN THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA (UNLIMITED JURISDICTION) CHRISTINA GONZALEZ, an individual Plaintiff, vs. LUONG PHAM, an individual; QUYNH NGUYEN, an individual; GILROY GAS & MINI-MART, INC., a California corporation Defendants. Case N0. 20CV373939W JOINT CASE MANAGEMENT CONFERENCE STATEMENT Date: July 15, 2021 Time: 2:30 p.m. Judge: Hon. Sunil R. Kulkarni Dept: 01 -1- JOINT CASE MANAGEMENT CONFERENCE STATEMENT (D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff CHRISTINA GONZALEZ (“Plaintiff”) and Defendants LUONG PHAM, QUYNH NGUYEN, and GILROY GAS & MINI-MART, INC. by and through their respective counsel, hereby submit the following Joint Case Management Statement in advance 0f the Case Management Conference (“CMC”) currently set for July 15, 2021. 1. STATEMENT AS TO WHETHER ADDITIONAL PARTIES ARE LIKELY TO BE ADDED AND A PROPOSED DATE BY WHICH ALL PARTIES MUST BE SERVED Plaintiff’s Position: Plaintiff understands that 1) operation Without records specified in Labor Code §1 174 result in the only evidence admissible as a business record relevant to the second, third, fourth and fifth causes 0f action stated in the complaint the information in the Electronic Point of Sale (EPOS) system and 2) defendants intend t0 rely 0n EPOS information as evidence here. Plaintiff intends to amend the complaint to include Chevron and ExtraMile because information in the EPOS is evidence they employ, as defined in the wage order, aggrieved employees Without verifiable identification either by acquiescing t0 operations Without records 0f the identity 0f employees and their hours worked each day as specified in the wage order and Labor Code section 1174, 0r suffer operation Without business records 0f the identity of an employee working 0n a particular day by not acting t0 assure that business records are kept s0 that a franchisor may audit operations. Plaintiff understands that each additional party has procedural rights specified in the Private Attorney General Act so that their addition requires a procedural stay so that they can respond t0 the notice of inquiry and the state is permitted to consider the case. Plaintiff knows of a public celebration 0f the new ExtraMile franchise at 5887 Monterey Road held July 6, 2012. Plaintiff knows that operations prior t0 and after July 6, 2012 were Without records required by Labor Code §1174 regarding what employee worked on a particular day. Thus for the reasons stated above, ExtraMile employs aggrieved employees Without identification either because ExtraMile permits the practice by acquiescence or suffers employment Without identification by failing t0 hinder the practice With the power in the franchise agreement to -2- JOINT CASE MANAGEMENT CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 do so. Plaintiff believes Chevron operates the EPOS to obtain information about gas sales t0 consumers and has a right to audit a franchisee’s business records to verify information in the EPOS system is correct. Thus, Chevron employs aggrieved employees because Chevron permits operation Without records by acquiescence 0r suffers operation Without records by failing to hinder the practice with the power in a franchise agreement t0 d0 so. Plaintiff believes the relationship is as stated above based on how the EPOS system is described by Judge William Alsup in Chevron U.S.A. Inc. v. SSD Associates (N0. C 05-03276 WHA (N.D. Cal. Sep. 12, 2006) 2,3): 3. An electronic point-of-sales "cash register," called "EPOS" by the parties, has been used t0 track the base sales for rent. Chevron has provided the EPOS system to its dealers. Chevron, however, needs the ability t0 verify that all sales are in fact run through the EPOS; otherwise, a dealer might cheat Chevron by diverting some sales outside the EPOS, such as a cash transaction With the cash simply going in the dealer's pocket. 4. Therefore, Section 4(d) 0f the dealer lease has provided at all material times (TX 2): Dealer shall maintain such books and records relating t0 Dealer's operation 0f the Premises as may be specified by Chevron from time to time in Chevron's Rental Accounting Guide and such other written instructions as Chevron may from time t0 time provide t0 Dealer. . . . Dealer acknowledges receipt 0f Chevron's Rental Accounting Guide. 5. In turn, the rental accounting guide has provided (TX 3 at page 4-1): In order to make the audit process discussed in the Audit section 0f this Guide quick and easy, it is necessary t0 have consistency in the way your records are maintained. If the records are not properly organized and properly stored, it could cost you a great deal of time and money to gather the information needed for your periodic audits by Chevron. The better your records are kept, the quicker the audit can be conducted and concluded. -3- JOINT CASE MANAGEMENT CONFERENCE STATEMENT .5 KOOOQGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The records should be organized in the manner described in this section. 6. Section 4(d) 0f the dealer lease has also provided: In order t0 confirm Dealer's performance 0f Dealer's obligations under this Lease, Chevron shall have the right at any time upon 72 hours' notice t0 Dealer t0 audit all books and records relating to Dealer's operation of the Premises. . . . Dealer shall Within the time specified in any such notice, produce such books and records for inspection and/or copying by Chevron. 7. Page 6-1 0f the rental accounting guide has provided: During the term 0f your Dealer Lease, you Will be periodically audited. This audit Will serve to validate the data provided from your facility and can also provide you with an opportunity to identify potential problems. . . . Audits that reveal reporting discrepancies or other breaches 0f your Dealer Lease may result in termination 0f your Dealer Lease. Defendants’ Position Defendants are not opposed t0 a continued stay if the Court entertains leave t0 add the proposed parties. Defendants d0 not concede the addition 0f any of the proposed parties is proper and reserve the right to seek demurrer 0r otherwise means t0 strike elements of Plaintiff’s complaint. 2. SERVICE LISTS IDENTIFYING ALL PRIMARY AND SECONDARY COUNSEL, FIRM NAMES, ADDRESSES, TELEPHONE NUMBERS, EMAIL ADDRESSES AND FAX NUMBERS FOR ALL COUNSEL Counsel for Plaintiffs Counsel for Defendants Patrick William Doyle (SBN 3 17791) Daniel A. Menendez (SBN 260822) 522 Utah Street Law Office of Daniel A Menendez San Francisco, California 941 10 1261 Lincoln Ave., Suite 208 Phone: (415) 926 9885 San Jose, California 95125 Email: law@patrickwdovle.com Tel. (408) 273-6912 Fax (408) 273-6912 daniel@siliconvalleylegal.com -4- JOINT CASE MANAGEMENT CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. A DESCRIPTION OF ALL DISCOVERY COMPLETED TO DATE AND ANY OUTSTANDING DISCOVERY AS OF THE DATE OF THE CONFERENCE Plaintiff’s Position Records the defendants gave the LWDA have been provided t0 the plaintiff. Plaintiff relies on Williams v Superior Court (2017) 3 Cal.5th 531 regarding the right t0 information of aggrieved employees. Plaintiff seeks records submitted to the Water Resources Control District pursuant t0 financial responsibility for underground storage tank operation regulations relevant t0 Whether t0 pierce the corporation to hold individual executives and directors liable. Defendants identify but have not yet produced information in the Electronic Point 0f Sale (EPOS) system relevant t0 the second, third, fourth, and fifth causes of action stated in the plaintiff s complaint. Defendants’ Position All discovery is presently stayed in this action per the Court’s December 8, 2020 Order Deeming Case Complex and Staying Discovery and Responsive Pleadings Deadline. In the interest 0f settlement, Defendants’ have agreed t0 provide Plaintiff documents and information relevant t0 resolution of this action. Defendants provided Plaintiff’s counsel with documents provided t0 the LWDA under the condition the information is restricted as confidential and for purposes of settlement. Defendants are exploring Plaintiff’s other information requests, including financial responsibility attestations and EPOS records. 4. APPLICABILITY/ENFORCEABILITY OF ARBITRATION CLAUSES. IF ANY; These claims are not subject to any arbitration agreement. 5. A LIST OF ALL RELATED LITIGATION PENDING IN OTHER COURTS, INCLUDING FEDERAL COURT. AND A BRIEF DESCRIPTION OF ANY SUCH LITIGATION, AND A STATEMENT AS TO WHETHER ANY ADDITIONAL -5- JOINT CASE MANAGEMENT CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RELATED LITIGATION IS ANTICIPATED (CRC 3.300) The Parties d0 not currently know of or anticipate any related litigation. 6. A DESCRIPTION OF FACTUAL AND LEGAL ISSUES- THE PARTIES SHOULD ADDRESS ANY SPECIFIC CONTRACT PROVISIONS THE INTERPRETATION OF WHICH MAY ASSIST IN RESOLUTION OF SIGNIFICANT ISSUES IN THE CASE Plaintiff’s Position The franchise agreement between the franchisor and the franchisee With respect t0 the electronic point of sale system may contain a contract provision 0f which interpretation would assist resolution of the case but such provisions are not yet identified because documents regarding the matter have yet t0 be discovered by the plaintiff. The facts causing the claim to arise are that pay records 0f aggrieved employees provided as a carbon copy 0f a handwritten record for at least the statutory period 0f a wage claim d0 not identify the employer, the employee, the inclusive dates 0f the pay r011 period, 0r the hours worked each day at each corresponding rate ofpay for that payroll period. Further, the handwritten records evidence weekly overtime is calculated over a fifteen or sixteen day pay period rather than over a seven-day week, and that daily overtime is approximated or rounded. A notice to the defendants and the Labor and Workplace Development Agency regarding Violations of the wage order resulted in the defendants providing computer formatted pay records t0 the LWDA Which, pursuant to the Labor Code, corrected the name of the employer and the inclusive dates 0f the payroll period that evidence weekly overtime is calculated over a fifteen or sixteen day pay period rather than over a seven-day week and that daily overtime is approximated or rounded so that it rarely occurs. The plaintiff initiated this representative action through the Private Attorney General Act after the LWDA took no action for 60 days that also alleged unfair competition. However, an amendment 0f the plaintiff’s complaint Will remove the unfair competition claim due t0 standing requirements. -6- JOINT CASE MANAGEMENT CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Documents submitted t0 the LWDA support the plaintiff’s first cause 0f action on the basis that business records weren’t kept as required by the Labor Code section 1174 to determine and record the actual time each employee works each day at each corresponding rate 0f pay. The plaintiff understands that the best evidence regarding the days and times each employee worked is information in an EPOS system Which a franchisor requires a franchisee use rather than a pay record system kept by the franchisee for the purpose 0f recording the time each employee works each day at each corresponding pay rate. The plaintiff Will amend the complaint t0 name all parties that engage, suffer 0r permit aggrieved employees t0 work. Plaintiff also seeks to pierce the franchisee corporation t0 hold individual executives and directors liable because plaintiff believes it is unjust for the corporate form to limit liability in this matter. Plaintiff identifies the documents needed to discover in a prior section 0f this statement. Defendants’ Position Defendants dispute all of Plaintiff’s allegations. Defendants further contend a number 0f the allegations and remedies sought are improper and subject to demurrer 0r summary adjudication. Defendants welcome dismissal 0f the unfair competition action. It is Defendants’ understanding Plaintiff is considering dismissing an individual defendant pending receipt and review 0f certain attestation information. Defendants are working t0 provide Plaintiff’s counsel that information. This is a smaller PAGA action. This is not a class action. Defendants employed less than 10 purportedly aggrieved employees during any possible time period alleged by Plaintiff. Plaintiff worked off and on for the corporate defendant over the years as a non-supervisory and then supervisory employee. The catalyst 0f Plaintiff’s action appears t0 be handwritten itemized wage statements which may have omitted certain information for Plaintiff. Plaintiff now claims all employees of Defendants over the past three-plus years as aggrieved under a number 0f legal theories. N0 other purportedly aggrieved employee was paid in the same manner as Plaintiff 0r subject t0 the same employment policies. Defendants are presently unaware 0f any contractual provisions that apply t0 this case, let -7- JOINT CASE MANAGEMENT CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alone any that justify including Chevron corporation or its ExtraMile holding as a party. The employees in question worked for and were paid by a privately-held limited liability company Where Chevron and ExtraMile hold n0 ownership interest. 7. THE PARTIES’ TENATIVE VIEWS ON AN ADR MECHANISM AND HOW SUCH MECHANISM MIGHT BE INTERGRATED INTO THE COURSE OF LITIGATION Plaintiff’s tentative View on ADR is it Will be best used to resolve issues relating t0 calculating appropriate pay for aggrieved employees pursuant t0 Code 0f Civil procedure §338 and any civil penalties pursuant to CCP §340 because the defendant asserts CCP §340 broadly and the absence 0f records results in approximating information so the parties may assert different methods to approximate missing or incomplete pay record information. Defendants are amenable t0 Rule 4 neutral evaluation. Although not the typical use of Rule 4, the Court has allowed Defendants’ counsel to utilize it before in a different complex matter (one pled as a class action that included a PAGA claim) and that matter settled largely due to the Rule 4 neutral evaluation. Defendants believe this matter would similarly benefit from a neutral’s assistance in weighing the facts and legal issues. Defendants d0 not believe private mediation is appropriate at this time. 8. WHETHER DISCOVERY SHOULD BE CONDUCTED IN PHASES OR LIMITED; AND IF SO, THE ORDER OF PHASING OR TYPES OF LIMITATIONS OF DISCOVERY. IF THIS IS A CLASS ACTION LAWSUIT, THE PARTIES SHOULD ADDRESS THE ISSUE OF LIMITED MERITS DISCOVERY IN ADVANCE OF CLASS CERTIFICATION MOTIONS. Plaintiff’s Position Plaintiff seeks discovery in phases. First, plaintiff seeks documents provided t0 the state by defendants. Plaintiff has obtained the pay records provided t0 the LWDA for aggrieved employees. Plaintiff seeks annual letters 0f the CFO regarding the financial responsibility for underground storage tank operation. In the event these documents evidence acts not taken 0r are attested by a person other than the CFO, further discovery into the mechanisms 0f financial _ 8 _ JOINT CASE MANAGEMENT CONFERENCE STATEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 responsibility will be sought. Second, plaintiff would seek documents regarding the financial accounts of the corporation and the executives and directors. If defendants d0 not maintain daily pay records for employees, fail to meet annual reporting requirements, and intermingle corporate and personal financial accounts, then plaintiff has evidence that it is unjust for the corporate form t0 limit the personal liability of executives and directors. Third, plaintiff seeks to review the records of the EPOS to determine what information regarding daily and weekly overtime work of aggrieved employees to determine the appropriate compensation. Fourth, testimonial evidence from the plaintiff and the named defendants through depositions take place after all documents are identified and reviewed by the parties. Defendants’ Position Defendants object t0 Plaintiff s proposed discovery schedule. Defendants request the Court continue the present stay as Plaintiff has indicated intent t0 add additional parties. The participation 0f these parties -including What Plaintiff alleges they add t0 the case- is integral t0 evaluating the scope of any liability on the part 0f Defendants. Defendants would further prefer to continue providing Plaintiff requested documents informally in hopes 0f reaching an early, cost-effective resolution of this matter. If the Court removes the discovery stay, Defendants’ preference would be to limit discovery to the PAGA cause 0f action before phasing in alter ego liability discovery. Alter ego liability discovery Will likely require Court assistance in the form of protective orders as t0 confidentiality and scope. This Court assistance should be much more limited for discovery as t0 any Violations covered by PAGA. Plaintiff should not be able to fully dissect Defendants’ finances Without first determining What, if any, liability for the underlying cause 0f action exists. Furthermore, Defendants should be offered the same opportunity t0 conduct discovery as to the underlying causes of action Without being sidelined while Plaintiff dissects their finances. -9- JOINT CASE MANAGEMENT CONFERENCE STATEMENT \DWQO‘sUI-BUJNH WMONMRDJNl-OKOOOMONthwh-QHO Dated: July 7, 2021 Dated: July 7, 2021 ReSpectfillly submitted, flaxWflM Patrick William Doyle” Attorneys for Plaintiff By: ls/ 92¢?leJ6 1/[6/26/Mfi2/ Daniel A. Menendez Attorneys for Defendants -10- JOINT CASE MANAGEMENT CONFERENCE STATEMENT