Efigenia Lagunas vs. Sps Technologies, LLC

Opposition

Cal. Super. - 4th Dist.June 7, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELECTRONICALLY FILED Superior Court of Califarnia, . County of Orange Kevin Mahoney (SBN: 235367) 07/20/2018 at 12:21:00 PM kmahoney @mahoney-law.net Clerk of the Superior Court Michael Swift (SBN: 296993) By Robert Renison, Deputy Clerk mswift@mahoney-law.net Alexander Perez (SBN: 304675) aperez @mahoney-law.net MAHONEY LAW GROUP, APC 249 East Ocean Boulevard, Suite 814 Long Beach, CA 90802 Telephone No.: (562) 590-5550 Facsimile No.: (562) 590-8400 Attorneys for Plaintiff EFIGENIA LAGUNAS, an individual, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER EFIGENIA LAGUNAS, an individual, Case No.: 30-2017-00924848-CU-WT-CJC Plaintiff, PLAINTIFF EFIGENIA LAGUNAS’ OPPOSITION TO DEFENDANT SPS Vs. TECHNOLOGIES dba AIR INDUSTRIES COMPANY'S EX SPS TECHNOLOGIES, LLC dba AIR PARTE APPLICATION FOR LEAVE INDUSTRIES COMPANY, a Pennsylvania TO PROVIDE SUPPLEMENTAL Corporation; SPS TECHNOLOGIES BRIEFING IN SUPPORT OF MOTION MEXICO, LLC, a California Corporation; FOR SUMMARY JUDGEMENT JESSICA P. CARRILLO, an Individual, and DOES 1 through 50, inclusive, Assigned for all purposes to: Hon. Glenn R. Salter, Dept.:C22 Defendants. Complaint Filed: June 7, 2017 Trial Date: October 1, 2018 -1- PLAINTIFF EFIGENIA LAGUNAS’ OPPOSITION TO DEFENDANT AIR INDUSTRIES COMPANY'S EX PARTE APPLICATION FOR LEAVE TO PROVIDE SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Efigenia Lagunas (“Ms. Laugnas” or “Plaintiff”’) hereby opposes the Ex Parte Application for Leave to Provide Supplemental Briefing in Support of Motion for Summary Judgement and Memorandum of Points and Authorities (“Application”) filed by Defendant SPSP TECHNOLOGIES, LLC dba AIR INDUSTRIES COMPANY (“Defendant”) on the following grounds: L DEFENDANT HAS NOT COMPLIED WITH ALL REQUIREMENTS FOR AN EX PARTE APPLICATION UNDER THE RULES OF COURT When making an ex parte application, “[a]n application must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” (Cal. Rules of Court, rule 3.1202(c).) In addition, the moving papers must be served “at the first reasonable opportunity.” (Id.) Defendant has not met either burden. Defendant’s motion is not accompanied by a declaration that makes an affirmative, factual showing on irreparable harm, immediate danger, or any other statutory basis for ex parte relief. Rather, the declaration of Defendant’s counsel filed in support of its ex parte application appears to present a timeline of the dates involved in the underlying motion for summary judgment. The declaration is wholly devoid of any facts that would even arguably constitute exigent circumstances for the application it purports to support. II. PLAINTIFF SHOULD NOT BE REQUIRED TO FORMALLY OPT OUT OF THE PRIOR CLASS CASE BECAUSE THE FILING OF HER OWN CASE HAS AND IS ADEQUATE NOTICE OF THE SAME In McCubbrey v. Boise Cascade Home & Land Corp., the United States District Court for the Northern District of California, stated there are ...serious due process implications of holding an absent member bound by a class adjudication demand that [the court looks] beyond formalistic procedures to evaluate whether a class member has reasonably expressed a desire to be excluded from a class suit. Respondents in [McCubbrey], who drafted, filed and served a complaint, clearly made substantial efforts towards communicating a request for exclusion from the McCubbrey class...Indeed, we believe that even the courts stressing the policy of finality in complex class adjudications would hold that these respondents had discharged their burden of opting out of the class suit. In cases 2- PLAINTIFF EFIGENIA LAGUNAS’ OPPOSITION TO DEFENDANT AIR INDUSTRIES COMPANY'S EX PARTE APPLICATION FOR LEAVE TO PROVIDE SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 holding absent members bound by class adjudications, the members before the court had taken no steps to seek exclusion from the class but had later petitioned the court for exclusion from the class judgment after termination of the opt-out period. [The McCubberey] respondents, in contrast, instituted suit against [the Defendant] during the exclusion period; no reasonable person could view their conduct as expressing a desire to participate in the proposed settlement.” (McCubbrey v. Boise Cascade Home & Land Corp. (1976) 71 F.R.D. 62, 70-71.) This is also supported by the treaties, 2 Newberg on Class Actions § 4:70 (5th ed.), which states “The court is to consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit. ... The implication of this passage is that other pending litigation is evidence that individuals have an interest in controlling their own litigation. (citing, Advisory Committee Note to 1966 Amendments, 39 F.R.D. 69, 104 (1966) (emphasis added) (citations omitted). This case mirrors McCubbrey, in that Plaintiff did not request exclusions during the “opt- out period. However, this case goes one step further because prior to any settlement and/or opt-out period, Plaintiff filed her suit almost one (1) year prior to any settlement, the complaint was served on Defendant prior to any settlement and/or the opt out period, Defendant has litigated Plaintiffs case on the merits, and any reasonable inference is that the Plaintiff clearly expressed her desire to opt out of the impending class settlement. Further, Plaintiff’s complaint filed on June 07, 2017, more than one year prior to this hearing, received more than adequate attention from Defendant and its attorneys in the course of litigation leading up to Defendant’s current ex parte application. Thus, Plaintiff should not be required to “opt-out” of the prior class case because she has given adequate notice of her intent not to participate in the class settlement by way of filing and serving her complaint upon Defendants, in addition to actually litigating her own case. III. PLAINTIFF SHOULD BE ALLOWED TO OPT-OUT AFTER THE OPT-OUT PERIOD DUE TO EXCUSABLE NEGLECT The court in In re Paine Webber Limited Partnership Litigation v. Paine Webber Group, Inc., relied upon section 6(b) (2) to find that a class member may be permitted to opt-out after the deadline upon a showing of excusable neglect for his or her failure to comply with a fixed deadline. (see In re Paine Webber Limited Partnership Litigation v. Paine Webber Group, Inc., 3 PLAINTIFF EFIGENIA LAGUNAS’ OPPOSITION TO DEFENDANT AIR INDUSTRIES COMPANY'S EX PARTE APPLICATION FOR LEAVE TO PROVIDE SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 147 F3d 132, 135 (2nd Cir. 1998). While In re Paine Webber Limited Partnership Litigation is a federal case, it should be noted that the underlying class action case that Defendant finds itself trying to compel Plaintiff to be a part of also has a claim for unpaid wages, i.e., minimum wages and overtime under the Fair Labor and Standards Act. Thus, Plaintiff should be allowed to “opt-out’ after the opt-out period for excusable neglect, i.e. understandably believing she did not need to do so given her existing case. Support is found in Federal Rules of Civil Procedure section 6(b)(2) which generally grants the court power to allow a party to complete an act after the time to do so is expired, upon a showing of excusable neglect. Clearly the efficacy of the “opt-out” notice is not substantively fair and should not control as Defendant and Defendant’s counsel would like to argue, despite being aware of both the class action settlement and Plaintiff’s case. Defendant’s attempt here is telling as they basically admit that they waited for Plaintiff not to opt-out in an attempt to pull this little stunt as they were litigating this case and the class action, and states Plaintiff received the notice and it went to the right address, as she admitted that it was her correct address during her deposition. (See Defendant’s Ex Parte Application, 3:21-4:13 and Declaration of Michael Olsen filed in support of Defendant’s Ex Parte Application 9 10.) Now, Defendant runs to this Court arguing that it didn’t pick up on the fact Plaintiff did not opt out until recently, hence their need for the present this ex parte application. If the sending of a notice was insufficient for a sophisticated business and skilled, experienced defense counsel to timely acknowledge that an opt-out was required, then Plaintiff, who is much less sophisticated than Defendant or its Defendant’s counsel, should be deemed to qualify for excusable neglect and be allowed to opt-out after the opt-out period expired. IV. DEFENDANT AND THEIR COUNSEL SHOULD NOT BE ALLOWED TO BENEFIT FROM VIOLATING RULES OF PROFESSIONAL CONDUCT 4.2 Rule of Professional Conduct 4.2 makes it clear that “In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent 4 PLAINTIFF EFIGENIA LAGUNAS’ OPPOSITION TO DEFENDANT AIR INDUSTRIES COMPANY'S EX PARTE APPLICATION FOR LEAVE TO PROVIDE SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the other lawyer.” (Rules of Professional Conduct, rule 2-100, Rule 4.2)(emphasis added). Rules of Professional Conduct 4.2 specifically bars communications with represented persons, whether directly or indirectly through intermediaries. There is one thing that is not in dispute, and that is the fact that Defendant’s counsel was fully aware that Plaintiff was represented by counsel. (See Defendant’s Ex Parte Application, 3:21-4:13)(See Declaration of Alexaner Perez, Ex “A”) Defendant’s counsel, with their vast experience, should not be allowed to benefit from their violation of the Rules of Professional Conduct by arguing that notice was sent as a result of the Court’s order in the class case. What Defendant fails and/or refuses to understand is that the Court’s order was the result of its settlement agreement. Defendant tries to argue unclean hands, however that couldn’t be further from the truth, as they are/were defense counsel in the class action, defense counsel in this action, in communication with Plaintiff’s counsel in both actions, but more specifically, this action, yet never sought an/or attempted to present the opportunity to opt-out with Plaintiff's counsel. Instead, Defendants withheld from the Court in the class action matter the fact that Plaintiff in this action has filed her own case, and then counsel knowingly allowed to be sent to Plaintiff its notice of the opt-out period through its intermediary i.e., the claims administrator in direct violation of rule 4.2. Defendant then waited idly sitting on their hands for the moment the “opt-out” period to expire, to then say, “I got you!” This Court should not allow Defendant or its counsel to benefit from its wrongdoing by forcing Plaintiff to proceed with the class case which she clearly, for the reasons discussed herein, does not want to be included in. V. CONCLUSION For the aforementioned reasons, Plaintiff submits this opposition. Dated: July 20, 2018 MAHONEY LAW GROUP, APC By: /s/Alexander Perez Kevin Mahoney Alexander Perez Attorneys for Plaintiff EFIGENIA LAGUNAS -5- PLAINTIFF EFIGENIA LAGUNAS’ OPPOSITION TO DEFENDANT AIR INDUSTRIES COMPANY'S EX PARTE APPLICATION FOR LEAVE TO PROVIDE SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Code of Civ. Proc. § 1013a, subd. (3) STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) and not a party to the within entitled action. My place of business is 249 East Ocean Boulevard, Suite 814, Long Beach, CA 90802. On July 20, 2018, I served [x] true copies [] originals of the foregoing documents described as: PLAINTIFF EFIGENIA LAGUNAS’ OPPOSITION TO DEFENDANT SPS TECHNOLOGIES dba AIR INDUSTRIES COMPANY’S EX PARTE APPLICATION FOR LEAVE TO PROVIDE SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT on the interested parties in this action, addressed as follows: Julie Westcott O'Dell, Esq. Attorneys for Defendants, SPS Michael Edward Olsen, Esq. TECHNOLOGIES LLC dba AIR BRYAN CAVE LEIGHTON PAISNER INDUSTRIES COMPANY LLP 3161 Michelson Drive, Suite 1500 Phone: (949) 223-7000 Irvine, California 92612-4414 Facsimile: (949) 223--7100 Email: julie.odell @bclplaw.com michael.olsen @bclplaw.com X] By electronic service: Based on a court order, I caused the document(s) to be sent to the persons at the electronic service addresses listed above by transmission through ONE LEGAL. X] State: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 20, 2018, at Long Beach, California. /s/Nicole Pierson Nicole Pierson -1- PROOF OF SERVICE