Statement Case Management Conference

Cal. Super. - 6th Dist.June 17, 2021

AWN \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV3831 62 Santa Clara - Civil Jonathan M. Lebe (SBN 284605) j0n@lebelaw.com Zachary Gershman (SBN. 328004) zachary@lebelaw.com Lebe Law, APLC 777 S. Alameda Street, Second Floor Los Angeles, CA 90021 Telephone: (213) 358-7046 Attorneys for Plaintiff Chafen Suttle, 0n behalf 0f himself and all other aggrieved employees Counselfor Defendant 0n the Following Page Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/8/2021 5:06 PM Reviewed By: R. Walker Case #21 CV3831 62 Envelope: 7434898 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Chafen Suttle, on behalf of himself and all CASE NO.: 21CV383162 other aggrieved employees, Assignedfor allpurposes t0 the Plaintiff, Hon. Patricia M. Lucas - Dept. 3 VS. JOINT INITIAL CASE inclusive, Defendants. 1 Time: Dept: MANAGEMENT CONFERENCE STATEMENT Care.Stat! Inc. Dba CareReV; and Does 1-10, Date, October 13 2021' 9 2:30 p.m. Action Filed: June 17, 2021 Trial Date: None Set JOINT INITIAL CASE MANAGEMENT CONFERENCE STATEMENT [\J \OOONONUI-PUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Julie Totten (State Bar N0. 166470) ORRICK, HERRINGTON SUTCLIFFE LLP 400 Capitol Mall, 30th Floor Sacramento, CA 95814-4497 Telephone: +1 9 1 6-447-9200 Facsimile: +1 916-329-4900 Email: jatotten@orrick.com Alexandra Stathopoulos (State Bar N0. 28668 1) ORRICK, HERRINGTON SUTCLIFFE LLP 405 Howard Street San Francisco, CA 94105-2669 Telephone: +1 415 773 5700 Facsimile: +1 415 773 5759 Email: astathopoulos@orrick.com Scott Morrison (State Bar N0. 320167) ORRICK, HERRINGTON SUTCLIFFE LLP 2050 Main Street, Suite 1100 Irvine, CA 92614-8255 Telephone: +1 949-567-6700 Facsimile: +1 949-567-6710 Email: scott.morrison@orrick.com Attorneys for Defendant CareReV 2 JOINT INITIAL CASE MANAGEMENT CONFERENCE STATEMENT AWN \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE HONORABLE COURT: Plaintiff Chafen Suttle (“Plaintiff”) and Defendant Care.Stat! Inc. Dba CareReV (“Defendant” and collectively, the “Parties”) hereby submit their Joint Initial Status Conference Statement: 1. Summary 0f the Case This is a wage and hour representative action in which Plaintiff asserts 11 causes of action against CareReV under the Private Attorneys General Act (“PAGA”) for: (1) PAGA Civil Penalties for Violations 0f Labor Code §§ 226.8 for Willful Misclassification; (2) PAGA Civil Penalties for Violations of Labor Code §§ 1194, 1197.1 and the Applicable Wage Order for Failure to Pay A11 Minimum Wages; (3) PAGA Civil Penalties for Violations 0fLabor Code §§ 510, 1194, 1198 and the Applicable Wage Order for Failure to Pay A11 Overtime Wages; (4) PAGA Civil Penalties for Violations of Labor Code §§ 204, 210 and the Applicable Wage Order for Failure to Pay A11 Wages; (5) PAGA Civil Penalties for Violations of Labor Code §§ 226.7, 5 12 and the Applicable Wage Order for Failure t0 Provide Timely and Compliant Meal Periods; (6) PAGA Civil Penalties for Violations of Labor Code § 226.7, and the Applicable Wage Order for Failure to Provide Timely and Compliant Rest Periods; (7) PAGA Civil Penalties for Violations 0f Labor Code §§ 246 et seq. for Failure t0 Provide Sick Pay; (8) PAGA Civil Penalties for Violations 0fLabor Code §§ 221 for Unlawful Deduction 0fWages.; (9) PAGA Civil Penalties for Violations 0fLabor Code §§ 226(a), 226.3 and the Applicable Wage Order for Failure t0 Provide Accurate and Itemized Wage Statements; (10) PAGA Civil Penalties for Violations 0fLabor Code §§ 201-203 for Failure t0 Timely Pay A11 Wages Due t0 Terminated/Separated Employees, and; (1 1) PAGA Civil Penalties for Violations of Labor Code §§ 2802 and the Applicable Wage Order for Failure to Reimburse A11 Reasonable and Necessary Business Expenses. Specifically, CareReV operates an online technology platform Where hospitals and outpatient centers can directly access per diem medical staff. Plaintiff alleges that CareReV classified Plaintiff and other aggrieved employees Who performed services for Defendant, as independent contractors rather than as employees. Plaintiff alleges that this misclassification was willful, and that CareReV engaged in a pattern and practice of misclassifying both him and other 3 JOINT INITIAL CASE MANAGEMENT CONFERENCE STATEMENT AWN \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 aggrieved employees as independent contractors in Violation of the Labor Code. As a result of this misclassification, Plaintiff alleges that aggrieved employees did not receive all wages, including minimum and overtime wages, had their wages unlawfully deducted for the cost 0f Occupational Accident Insurance, did not receive sick pay, 0r reimbursements for reasonable and necessary business expenses, and were denied meal and rest breaks, among other Violations. CareReV denies Plaintiff” s allegations in their entirety. 2. Orders from Prior Case Management Conferences and Progress 0f Parties’ Compliance with Said Orders There are no orders from prior case management conferences. 3. Significant Procedural and Practical Problems that May Likely Be Encountered Plaintiff” s Position: Plaintiff anticipates filing a motion a motion for summary judgment 0r partial summary adjudication as to the status 0f the aggrieved employees as misclassified under the Labor Code. Specifically, under the ABC test described by the California Supreme Court in Dynamex Operations W. v. Superior Court (2018) 4 Cal. 5th 903, 955, and codified by the California Legislature in AB-S, all workers are presumptively considered to be employees in the state of California. Plaintiff believes that CareReV will be unable t0 overcome its burden to show that the aggrieved employees Who performed work for it in the state 0f California were free from the control of Defendant, performed work outside the usual course of business 0f Defendant, and that such workers are “customarily engaged in an independently established trade, occupation, 0r business 0f the same nature as that involved in the work performed.” Plaintiff intends to file his motion for summary judgment or partial summary adjudication when appropriate, after obtaining necessary discovery. Plaintiff responds t0 Defendant’s potentially dispositive and significant procedural issues below: o Plaintiff believes that the issue 0f whether claims 0f the aggrieved employees are manageable should only be resolved, if at all, after the taking of discovery, including requests for production 0f documents, interrogatories, requests for admissions, and the 4 JOINT INITIAL CASE MANAGEMENT CONFERENCE STATEMENT AWN \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 issues in this action include: taking 0f the deposition 0f Defendant’s Person Most Knowledgeable. Moreover, numerous courts have found that just because individualized determinations would be required does not make a PAGA claim unmanageable. See Heredia v. Eddie Bauer LLC (N.D. Cal., Mar. 27, 2020) 2020 U.S. Dist. LEXIS 53929 *12-13. (“However, that Plaintiff must prove a Violation as to each aggrieved employee in order t0 recover civil penalties for that employee does not support the conclusion that permitting Plaintiff to attempt t0 prove her case would result in an unmanageable trial”); see also Zackaria v. Wal-Mart Stores, Inc. (C.D. Cal., NOV. 3, 2015) 142 F. Supp. 3d 949, 957-59 (“the court finds defendant's manageability argument inconsistent With PAGA'S purpose and statutory scheme”). Plaintiff has complied with the applicable PAGA administrative requirements for each 0f the Claims Plaintiff is alleging in his Complaint. Defendant is mistaken that Plaintiff has failed t0 identify the group 0f “aggrieved employees” under the PAGA. The term “aggrieved employees” is a term 0f art under the PAGA which means “any person Who was employed by the alleged Violator and against whom one or more of the alleged Violations was committed.” Lab. Code § 2699(b). Plaintiff has provided notice of the alleged Violations through his notice letter to the Labor and Workforce Development Agency and in his operative Complaint. Moreover, under Huflv. Securitas Security Services USA, Inc. (2018) 23 Cal. App. 5th 745, 75 1, the “PAGA allows an ‘aggrieved employee’ t0 pursue penalties for all the Labor Code Violations committed by that employer.” As a result, Plaintiffmay pursue all alleged Violations of the Labor Code, and not just those Who performed similar services for Defendant. Thus, Plaintiff will oppose any demurrer 0r motion t0 strike brought 0n these grounds. Defendant’s Position: CareReV believes potentially dispositive and significant procedural Whether Plaintiff’s PAGA claims may be manageably tried as a representative action. See, e.g., Wesson v. Staples the Ofiice Superstore, LLC, N0. B302988,- Cal.App.5th- 5 JOINT INITIAL CASE MANAGEMENT CONFERENCE STATEMENT AWN \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Sept. 9, 202 1) (Court oprpeal held that trial courts have the inherent authority t0 manage complex litigation, and under this authority can evaluate Whether PAGA claims can be manageably adjudicated at trial; if a PAGA claim cannot be manageably tried, the court may strike the claim). Indeed, the California Court 0f Appeal recently noted “PAGA claims may well present more significant manageability concerns than those involved in class actions” because PAGA lacks many 0f the protections associated with class litigation. Id. at 30-31. If Plaintiff is unable to show that litigating his claims as a representative action is manageable, CareReV anticipates that it Will ask the Court t0 strike Plaintiff” s unmanageable claims. o Whether Plaintiff has complied with applicable PAGA administrative requirements for each of the claims Plaintiff is alleging in his Complaint. o Who is included in the group of alleged “aggrieved employees” Plaintiff references in his Complaint and LWDA letter. Plaintiffs Complaint does not provide any description of the “aggrieved employees” (other than they are “California-based”, see Complaint 11 1) Which does not give CareReV fair notice as to what the scope 0f the PAGA action is. Plaintiff performed services in CareReV’s corporate office related t0 recruiting and onboarding. CareReV thus contends that, t0 the extent Plaintiff” s PAGA action is Viable at all, he may only properly represent those who performed similar services for CareReV’s corporate office. CareReV also anticipates filing a Motion for Summary Judgment and/or Adjudication with respect t0 Plaintiffs claims. 4. Suggestions for Efficient Management / Key Timeline 0f Events In compliance with the Court’s “Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline,” the Parties met and conferred regarding the list 0f issues set forth in the Order. In doing s0, the Parties discussed: a. Issues Related t0 Recusal / Disqualification The Parties identified n0 issues related t0 recusal 0r disqualification. /// 6 JOINT INITIAL CASE MANAGEMENT CONFERENCE STATEMENT AWN \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Issues 0fLaw That Would Simplify / Further Resolution 0f the Case, Including Issues Regarding Choice 0f Law Both Parties anticipate that they may file Motions for Summary Judgment and/or Adjudication. In addition, CareReV may bring procedural challenges to Plaintiff’s PAGA claims, as described above. c. Alternative Dispute Resolution Both Parties are open t0 private mediation when appropriate and are presently exploring Whether they may conduct informal discovery and engage in an early mediation of this matter. d. Plan for Preservation 0f Evidence and a Uniform System for Identification 0f Documents Throughout the Litigation CareReV Will ensure an appropriate litigation hold is in place. The Parties agreed t0 Bates number document productions as CAREREV_000000 (for CareReV’s productions) and SUTTLE_0000000 (for Plaintiffs productions). e. Plan for Document Disclosure/Production and Additional Discovery If informal discovery and early mediation are not possible, Plaintiff intends to conduct written discovery followed by a PMK deposition. CareReV intends to take Plaintiff” s deposition and propound related written discovery. f. Phasing 0f Discovery Plaintiff” s Position: Plaintiff does not believe that discovery should be phased or limited in any way at this time. Such a limitation is improper given the fact that this matter is PAGA-only and there will be n0 motion for class certification. Moreover, in a PAGA representative action, discovery should not be limited because Plaintiff has not yet proven liability as t0 their own allegations as recognized by the California Supreme Court. Williams v. Superior Court (2017) 3 Cal. 5th 531, 551 (“California law has long made clear that t0 require a party t0 supply proof of any claims or defenses as a condition 0fdiscovery in support ofthose claims or defenses is to place the cart before the horse.”). Defendant’s Position: CareReV suggests initial discovery should focus 0n the scope 0f Plaintiffs alleged claims, specifically Whether he has a Viable claim himself and who potentially 7 JOINT INITIAL CASE MANAGEMENT CONFERENCE STATEMENT AWN \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 falls into the category of alleged “aggrieved employees.” Once that threshold issue is settled, CareReV agrees further phasing is likely not necessary. g. Issues Involving the Protection of Evidence and Confidentiality The Parties will submit a Stipulated Protective Order Concerning Confidential Information for the Court’s approval. h. Handling 0fAny Potential Publicity Issues The Parties are not aware 0f any potential publicity issues. 5. Other Considerations The Parties agree that service in this matter may be completed by electronic service. Other than this, the Parties do not have any other special considerations for the Court. The Parties propose that the next case management conference be scheduled for 90-120 days from the date of the case management hearing. DATED: October 8, 2021 LEBE LAW, APLC By: JonathankMFKebe Zachary T. Gershman Attorneys for Plaintiff Chafen Suttle, individually and 0n behalf 0f all other aggrieved employees DATED: October 8, 2021 ORRICK, HERRINGTON, & SUTCLIFFE LLP By: /s/ Alexandra Stathopoulos Julie Totten Alexandra Stathopoulos Scott Morrison Attorneys for Defendant CareReV 8 JOINT INITIAL CASE MANAGEMENT CONFERENCE STATEMENT [\J \OOOQQUI-bw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County 0f Los Angeles, State of California, I am over the age 0f eighteen years and not a party to the within entitled action; my business address is 777 S. Alameda Street, Los Angeles, CA 90021. On October 8, 2021, I served the foregoing: “JOINT INITIAL CASE MANAGEMENT CONFERENCE STATEMENT” on the interested parties, by the service method indicated below: Julie Totten ORRICK, HERRINGTON SUTCLIFFE LLP 400 Capitol Mall, 30th Floor Sacramento, CA 958 14-4497 Email: jatotten@0rrick.com Alexandra Stathopoulos ORRICK, HERRINGTON SUTCLIFFE LLP 405 Howard Street San Francisco, CA 94105-2669 Email: astathopoulos@orrick.com Scott Morrison ORRICK, HERRINGTON SUTCLIFFE LLP 2050 Main Street, Suite 1100 Irvine, CA 92614-8255 Email: scott.m0rrison@orrick.com g (VIA ELECTRONIC SERVICE) Based on a court order 0r an agreement 0fthe parties to accept service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message 0r other indication that the transmission was unsuccessful. g (STATE) I declare under penalty 0f perjury under the laws of the State of California that the above is true and correct. Dated: October 8, 2021 2WWV Zachfiy@ershman 9 PROOF OF SERVICE