Response Reply

Cal. Super. - 6th Dist.March 4, 2021

DAILY ALJIAN LLP Newport Beach, California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV377209 Santa Clara - Civil DAILY ALJIAN LLP Justin E. D. Daily (State Bar No. 209772) jd@dallp.com Reed Aljian (State Bar N0. 21 1010) ra@dallp.com Simon Kwak (State Bar No. 297362) sk@dallp.com Joshua D. Klein (State Bar No. 322099) jklein@dallp.com 100 Bayview Circle, Suite 5500 Newport Beach, CA 92660 Telephone: 949.861.2524 Facsimile: 949.269.6364 Attorneys for Delmi Menendez, individually and 0n behalf 0f all others similarly situated Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/8/2021 3:01 PM Reviewed By: L. Nguyen Case #21 CV377209 Envelope: 7225129 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DELMI MENENDEZ, individually and on behalf of all others similarly situated, Plaintiff, V. STRATEGIC BUILDING SERVICES, INC., a California corporation; ANDREW MILLER, an individual; and DOES 1 through 50, inclusive, Defendant(s). CASE NO.: 21CV377209 Case Assigned for A11 Purposes t0: Hon. Patricia M. Lucas Dept. 3 REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO CONDUCT DISCOVERY [Filed concurrently With Declaration 0f Simon Kwak in Support 0f Reply] Hearing Date: September 15, 2021 Time: 1:30 pm. Dept: 3 Complaint Filed: March 4, 2021 Trial Date: None Set REPLY ISO PLAINTIFF’S MOTION TO CONDUCT DISCOVERY DAILY ALJIAN LLP Newport Beach, California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. TABLE OF CONTENTS PAGE INTRODUCTION ................................................................................................................... 1 ADDITIONAL RELEVANT FACTS ..................................................................................... 1 ARGUMENT ........................................................................................................................... 2 A. Legal Authority Cited by Defendants is Distinguishable ............................................ 2 B. Legal Authority Cited by Class Counsel Provide the Analytical Framework for Applying the Farris Balancing Test....................................................................... 4 C. Conflicts Between Plaintiff and the Class d0 not Preclude Class Counsel from Identifying a Replacement Plaintiff ............................................................................. 4 CONCLUSION ........................................................................................................................ 6 -1- REPLY ISO PLAINTIFF’S MOTION TO CONDUCT DISCOVERY DAILY ALJIAN LLP Newport Beach, California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendants d0 not dispute that Plaintiff has standing t0 bring a class action complaint against Defendants on behalf 0f other non-exempt employees. Their Opposition, however, makes two primary arguments. First, Defendants contend that the application of the Farris balancing test warrants a denial of the Motion t0 Conduct Discovery (the “M0tion”) and Class Counsel’s request for discovery 0f absent class members’ contact information t0 find a replacement plaintiff. Defendants rely on FirstAmerican Title Ins. C0. v. Superior Court, 146 Cal. App. 4th 1564 (2007) (“First American”) as presenting analogous facts, but Defendants ignore the fact that both the states of Colorado and California investigated and reached settlements 0n behalf of affected class members regarding the practices complained of in that action. Defendants also contend that since the interests 0f Plaintiff and the putative class conflict, Class Counsel is barred from representing the putative class. Defendants only cite t0 certain Rules 0f Professional Conduct Without considering their application in the context of class and representative actions. California law, however, imposes strict fiduciary duties on Class Counsel to ensure that litigation proceeds in the best interests of all unnamed class members. For the reasons stated in the Motion and the reasons stated herein, Class Counsel requests that the Court grant the Motion and order Defendants t0 produce class members” contact information subj ect t0 a Belaire- West notice and opt-out procedure. II. ADDITIONAL RELEVANT FACTSl Prior t0 Plaintiff’s engagement 0f Class Counsel, Class Counsel advised Plaintiff 0f her obligations as a class representative. See Declaration of Simon Kwak in Support of Reply (“Kwak Reply Decl.”), fl 4. Class Counsel advised her 0f these obligations in writing in both English and Spanish. Id. at 1] 5. Plaintiff consented t0 the filing of a class action against Defendants. Id. at 11 6. Plaintiff is aware that Class Counsel filed this action identifying her as the named plaintiff. Id. at 1] 7. 1 Defendants incorrectly argue that Plaintiff s counsel did not have their client’s authority t0 file this case. (Defendants’ Opposition (“Opp’n.”), 222-3). Therefore, additional factual supplementation is necessary. As stated in Plaintiff’ s Motion, Class Counsel is mindful of its continuing obligation 0f confidentiality and will disclose additional facts, as the Court deems necessary, in a manner that preserves Plaintiff s privilege. -1- REPLY ISO PLAINTIFF’S MOTION TO CONDUCT DISCOVERY DAILY ALJIAN LLP Newport Beach, California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Class Counsel is informed that Plaintiff is not seeking t0 continue the litigation as a named plaintiff on an individual basis. Id. at 1] 8. Even if Plaintiff is not a named plaintiff, she would still be a member 0f the putative class. Class Counsel previously informed the Court that a motion t0 be relieved as counsel would be filed. Id. at 11 9. However, in light of the current stay of this action, Class Counsel deferred the filing thereof upon further order of the Court. Id. III. ARGUMENT A. Legal Authority Cited by Defendants is Distinguishable Defendants contend that the facts ofFirst American Title Ins. C0. v. Superior Court, 146 Cal. App. 4th 1564 (2007) (“First American”) are analogous t0 the facts presented by the Motion. See Opp’n., pp. 5:20-7zl 1. The contention is Without merit. The appellate court in First American ordered the trial court to vacate its order granting a plaintiff” s motion for pre-certification discovery t0 find a substitute plaintiff. First American, 146 Cal. App. 4th at 1579. Defendants’ Opposition ignores the circumstances which led the appellate court t0 reverse the trial court’s order. Specifically, First American was based 0n the following findings: (1) the abuses complained ofby the named plaintiffwere previously investigated by the State of Colorado; (2) the State of Colorado reached a nationwide settlement concerning the abuses; (3) the named plaintiff filed the action after the State of Colorado entered into a settlement; (4) the California Department 0f Insurance conducted its own investigation into the same alleged abuses; (5) the California Department of Insurance also reached a settlement 0n behalf 0f California consumers injured by the same abuses; and (6) the named plaintiff knew he was not an affected member 0f the class, but continued t0 pursue the same class claims for Which settlements had already been reached. See id. at 1576-77. It is against the weight 0f these factual findings that the appellate court went 0n to state that “[a]ny further legal action can be pursued by members 0f the class, if they s0 desire” and held that pre-certification discovery under such circumstances would be an abuse 0f discretion. Id. at 1577 (emphasis added). First American is simply inapplicable t0 the instant factual situation and Defendants cite t0 n0 other state enforcement action 0r civil action that resolved allegations 0f unlawful employment practices 0r that are concurrently seeking to enforce absent class members’ rights. Defendants also d0 not dispute that Plaintiffhad standing When she filed her action and that she -2- REPLY ISO PLAINTIFF’S MOTION TO CONDUCT DISCOVERY DAILY ALJIAN LLP Newport Beach, California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is a member 0f the putative class. See Opp’n., p. 6:1 1-12 (noting “the instant case does not involve a plaintiffwho lacks standing . . . .”). Defendants also cite t0 CVS Pharmacy, Inc. v. Superior Court, 241 Cal. App. 4th 300 (2015) (“CVS”) and Starbucks Corp. v. Superior Court, 194 Cal. App.4th 820 (201 1) (“Starbucks”), cases in which the appellate courts directed the trial courts t0 vacate orders permitting pre-certification discovery 0f absent class members’ information for the purpose of identifying a replacement representative. See Opp’n., p. 4:8-17. These decisions are also inapplicable and distinguishable because they implicate intrusions into the highest zones of privacy interests guaranteed by law (126., medical records and marijuana convictions) and conclude that absent class members are better suited t0 pursue their own claims given the nature 0f the claims and privacy interests involved. See CVS, 241 Cal. App. 4th at 3 13; Starbucks, 194 Cal. App. 4th at 829. Furthermore, the named plaintiffs in these cases never had legal standing, but sought relief that would infringe on those privacy rights in such a way that the benefits 0f the class action vehicle did not outweigh the potential for abuse under the circumstances. See CVS, 241 Cal. App. 4th at 583; Starbucks, 194 Cal. App. 4th at 822. Additionally, Cryoport Sys. V. CAN Ins. C051, 149 Cal. App. 4th 627 (2007) is also inapplicable as it concerns a plaintiff that was unable t0 allege its own standing in an action under California’s Unfair Competition Law even after being provided an opportunity t0 amend its complaint. See Cryoport Sys. v. CAN Ins. C0s., 149 Cal. App. 4th 627, 634 (2007). Plaintiff s standing is not at issue in this case. Rather, it is the named plaintiff s willingness to cooperate in this litigation that raise the issue 0f her ability t0 effectively represent the interests 0f the class. Such intervening facts certainly permit the Court t0 determine, based 0n the facts presented, that Plaintiff is n0 longer an adequate class representative and permit Class Counsel an opportunity t0 identify a replacement plaintiff. Further, the privacy interests involved can be adequately protected With a Belaire- West notice and opt-out procedure. “[C]ontact information for fellow employees in putative wage and hour class actions is routinely discoverable,” and “[a]ccess to contact information will often be warranted evenm the adequacy of the named plaintiff and counsel's representation has been vetted, a class certified, absent putative class members made parties, and heightened duties imposed.” Williams v. Superior Court, 3 Cal. 5th 531, 544, 547 (2017) (citing Belaire-West -3- REPLY ISO PLAINTIFF’S MOTION TO CONDUCT DISCOVERY DAILY ALJIAN LLP Newport Beach, California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 560-562 (2007)) (emphasis added). B. Legal Authority Cited by Class Counsel Provide the Analytical Framework for Applying the Parris Balancing Test Defendants contend that the cases cited by Class Counsel in the Motion (Safeco, Starbucks, and CashCall) are distinguishable. These cases, however, provide the framework for the application 0f the Farris balancing test under the present circumstances, including the right 0f Class Counsel to seek pre-certification discovery to identify a replacement representative. These cases further demonstrate that, while courts may factor into its calculus the potential for abuse Where the only named plaintiff has never been a member of the class (Which is not at issue here), the potential for abuse may be overcome or outweighed by the existence several factors, such as the existence 0f a secret practice, statute of limitations concerns, the absence 0f other enforcement actions, measures to protect privacy concerns, and the legislative purpose 0f the statutes upon Which named plaintiffs seek t0 enforce and seek relief. When balancing the factors considered by these cases, application 0f the Parris balancing test, as demonstrated in the moving papers, support granting the requested relief. C. Conflicts Between Plaintiff and the Class do not Preclude Class Counsel from Identifying a Replacement Plaintiff Defendants contend that Class Counsel is “barred from representing the putative class” because Plaintiff” s interests conflict With those 0f the putative class. Defendants’ contention is Without merit. First, Defendants provide no authority for the proposition that the cited Rules 0f Professional Conduct should be applied in the manner they propose in the context 0f class 0r other representative actions. Class Counsel is aware of n0 such authority either. Second, California law “imposes strict fiduciary responsibilities on class representatives and class counsel t0 ensure that litigation proceeds in the best interests 0f all unnamed class members.” Hernandez v. Restoration Hardware, Ina, 4 Cal. 5th 260, 273 (2018). Third, it is well-established under California law that for purposes 0f conflicts, class counsel does not represent unnamed class members before the class is certified. See e.g., Kullar v. Food Locker Retail, Ina, 191 Cal. App. 4th 1201, 1205-07 (2011) (stating law generally in the context 0f a settlement approval proceeding in a consolidated class action where the defendant sought -4- REPLY ISO PLAINTIFF’S MOTION TO CONDUCT DISCOVERY DAILY ALJIAN LLP Newport Beach, California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to disqualify attorneys representing employees in two 0f the pending class action cases). Nevertheless, intervening facts in this case call into question Whether Plaintiff can adequately represent the interests 0f absent class members 0n their behalf. Indeed, a class representative who “is otherwise unqualified t0 serve as class representative may, in a proper case, move for pre-certification discovery for the purpose of identifying a new class representative.” Safeco Ins. C0. ofAm. v. Superior Court, 173 Cal. App. 4th 814, 828 (2009) (emphasis added). The facts and findings in Pirjada v. Superior Court, 201 Cal. App. 4th 1074 (201 1) (“Pirjada”) are instructive in deciding the Motion. In Pirjada, the named plaintiff filed a putative class action against his former employer in Los Angeles Superior Court for unpaid wages, meal and rest period Violations, untimely payment 0fwages, and inaccurate wage statements. Pirjada, 201 Cal. App. 4th at 1078. Shortly after filing the action, the named plaintiff then sent a letter t0 his attorney stating that he resolved the case and requested that the attorneys dismiss his claims in the pending class action lawsuit? Id. at 1079. The named plaintiff s counsel did not dismiss the action, but moved for an order providing notice to the putative class that a replacement representative was necessary. Id. The employer filed a separate motion seeking t0 dismiss the action pursuant t0 California Rule 0f Court 3.770. Id. at 1080. Pursuant t0 Rule 3.770(a), the trial court recognized that court approval is required before a class action may be dismissed. Id. The trial court also recognized that the fact a named plaintiff individually settled his claims does not divest the plaintiff 0r his counsel 0f their fiduciary obligations t0 the putative class members. Id. Citing La Sala v. American Savings & Loan Assn. (1971), 5 Cal. 3d 864, 872, the trial court stated that it should afford the named plaintiff the opportunity to amend the complaint, to add new individual plaintiffs, or both, in order t0 establish a suitable representative. Id. However, the trial court concluded that a court-sanctioned notice was neither necessary nor appropriate at the time. Concurrently, the trial court set an order to show cause regarding a dismissal pursuant to Rule 3.770. Id. While Pirjada called into question the trial court’s basis for denying the plaintiff s motion for notice t0 the class, the appellate court did not review that issue because the named plaintiff did not 2 Here, Class Counsel is informed that Plaintiff n0 longer wishes t0 pursue the action in either a representative 0r individual basis as the lead plaintiff. -5- REPLY ISO PLAINTIFF’S MOTION TO CONDUCT DISCOVERY DAILY ALJIAN LLP Newport Beach, California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 appeal the ruling and the issue was not before the court. Id. at 1087. Rather, the issue on appeal was the trial court’s denial 0f the named plaintiffs motion t0 compel production of the employee list. Id. Although the appellate court did not find an abuse of discretion in denying the motion to compel, it firmly established that the trial court would be revisiting the issue 0f notice to the class at the order t0 show cause hearing. Id. at 1088. In relevant dicta, the Pirjada court found that “it would n_0t have been an abuse 0f discretion for the superior court t0 have acted t0 safeguard the rights 0f potential class members by granting the motion t0 compel and requiring [the employer] to provide names and contact information using the third party administrator, opt-out procedure approved by the Supreme Court . . . .” Id. at 1087 (citing Pioneer Electronics (USA) v. Superior Court, 4O Cal. 4th 360 (2007); Best Buy Stores, LP. v. Superior Court, 137 Cal. App. 4th 772 (2006); and CashCall, Inc. v. Superior Court, 159 Cal. App. 4th 273 (2008)) (emphasis added). Further, the appellate court cast doubt 0n the trial court’s initial ruling denying the named plaintiffs motion for notice t0 the putative class. Id. at 1087-88 (“Although the court’s decision t0 deny [the named plaintiff’s counsel’s] motion for notice to the class was based largely 0n . . . a distinction we implicitly rejected . . . the propriety 0f that ruling is not before us . . . Whether or not the superior court’s initial decision not t0 notify potential class members . . . was correct. . . .”). Clearly, the right t0 conduct discovery to learn the names of potential class representatives is rooted in a strong public policy protecting the interests and rights ofunnamed members in putative class and PAGA actions. Such interests must also be protected in this matter. IV. CONCLUSION For all 0f the foregoing reasons, Class Counsel respectfully requests that the Court permit discovery t0 obtain the putative class members’ contact information and order Defendants to produce the contact information pursuant t0 a Belaire- West notice procedure. Dated: September 8, 2021 DAILY ALJIAN LLP By: /s/ Simon Kwak Justin E. D. Daily Simon Kwak Attorneys for Plaintiff Delmi Menendez -6- REPLY ISO PLAINTIFF’S MOTION TO CONDUCT DISCOVERY