Felczer vs. Apple Inc

Opposition Other

Cal. Super. - 4th Dist.December 16, 2011

o o a 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 800 San Diego, CA 92101.3577 619.232.0441 JULIE A. DUNNE, Bar No. 160544 AMY TODD-GHER, Bar No. 208581 LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, California 92101 Telephone: 619.232.0441 Facsimile: 619.232.4302 TODD K. BOYER, Bar No. 203132 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, California 95113 Telephone: 408.998.4150 Facsimile: 408.288.5686 MICHAEL G. LEGGIERI, Bar No. 253791 GREGORY G. ISKANDER, Bar No. 200215 LITTLER MENDELSON, P.C. 1255 Treat Boulevard, Suite 600 Walnut Creek, CA 94597 Telephone: 925.932.2468 Facsimile: 925.946.9809 Attorneys for Defendant APPLE INC. ELECTRONICALLY FILED Superior Court of California, County of San Diego 08/30/2016 at 04:24:00 PM Clerk of the Superior Court By Surmnmer Travis, Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO BRANDON FELCZER, individually, RYAN GOLDMAN, individually, RAMSEY HAWKINS, individually, and JOSEPH LANE CARCO, on behalf of themselves and all others similarly situated, Plaintiffs, V. APPLE INC., a California corporation; and DOES 1 through 300, inclusive, Defendant. Case No. 37-2011-00102593 CU-OE-CTL Assigned For All Purposes To: Hon. Eddie C. Sturgeon IMAGED FILE DEFENDANT APPLE INC.'S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN EXTENSION TO FILE ITS OPPOSITION TO APPLE’S MOTION FOR DECERTIFICATION Date: August 31, 2016 Time: 12:00 p.m. Dept: C-67 Trial Date: October 14, 2016 Complaint Filed: December 16, 2011 DEFENDANT APPLE INC.’S OPPOSITION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 800 San Diego, CA 921013577 619.232.0441 There is no justification for another extension of time for Plaintiffs to file their opposition to the motion to decertify. Plaintiffs’ purported basis for seeking further delay is entirely of their own creation, and only serves to illustrate the faulty promises upon which Plaintiffs certified their meal and rest break claims. The timeline, which Plaintiffs did not provide to the Court in their papers, is straightforward: August 17, 2016: Apple filed its motion to decertify. August 19, 2016: per the Court’s July 27, 2016 Order, Apple provided Plaintiffs with a report from Renee Conmy, the Corporate Employee Relations Senior Director, that detailed the results of her interviews with 42 managers in nine specific Corporate groups regarding their scheduling practices for non-exempt employees during the class period. August 24, 2016: Plaintiffs sought and obtained an ex parte order granting a one-day extension to file their opposition to the motion to decertify. Notably, at the August 24 hearing, Plaintiffs did not raise the individuals identified in Ms. Conmy’s report at all. Sunday, August 28, 2016, at 4:03 p.m.: Plaintiffs’ counsel sent an email requesting the deposition of eight individuals listed in Ms. Conmy’s report, stating “we can do the depositions here in San Diego,” and stating the depositions must be completed by August 31, i.e., giving Apple only three days to contact eight witnesses, re-arrange their schedules, and produce them for deposition.’ (Leggieri Decl., Ex. A.) Monday, August 29, 2016: Within 24 hours of Plaintiffs’ request, Apple confirmed that, notwithstanding the (extremely) short notice, it was able to produce four of the eight individuals for deposition on Wednesday, August 31 — ie., within Plaintiffs’ requested deadline. (Leggieri Decl., Ex. B.) Apple notified Plaintiffs that the individuals would be available for deposition where they live and work (three in Cupertino and one in Austin, Texas), because none of them are located in San Diego. Tuesday, August 30, 2016, at 7:41 a.m.: Plaintiffs’ counsel responded: “Todd, They need Notably, Plaintiffs obtained an order limiting Apple to deposing only 15 (i.e., 7.5%) of the 201 Class Members who completed Plaintiffs’ rest break survey. Now, however, Plaintiffs request to depose eight (i.e., 20%) of the 42 managers whom Ms. Conmy interviewed. 1. DEFENDANT APPLE INC.’S OPPOSITION co 3 \O 10 11 12 13 14 8 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 801 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 to go forward in San Diego. Please make arrangements. Thanx.” (Leggieri Decl., Ex. C.) e Tuesday, August 30, 2016, at 8:58 a.m.: Apple reminded Plaintiffs’ counsel that because these are natural persons, the Code of Civil Procedure requires that they be deposed where they live/work. See Code Civ. P. § 2025.250(a). Apple also offered to make the individuals available for deposition by video or phone. (Leggieri Decl., Ex. D.) Apple asked Plaintiffs’ counsel to confirm whether they will take the depositions no later than noon so that Apple and the individuals could make the ———— arrangements. (Leggieri Decl., Ex. D.) e Tuesday, August 30, 2016, at 2:46 p.m.: Plaintiffs’ counsel wrote that they would not take any of the offered depositions because: “You chose not to make any one of them available in San Diego.” (Leggieri Decl., Ex. E (emphasis in original).) > Thus, rather than respond to Apple’s proposal to take four of the depositions that Plaintiffs requested, Plaintiffs chose not to take any of the offered depositions, and instead chose to appear ex parte to request more time to take these very same depositions. The fact that Plaintiffs chose not to depose any of these individuals — even though Apple made them available on 48 hours’ notice — would appear to confirm this is just a manufactured excuse to seek further delay. Moreover, the purported basis for Plaintiffs’ ex parte application highlights the faulty promises underlying the Certification Order. Plaintiffs concede that, four years and nine months after filing a complaint alleging the existence of “uniform” policies, more than two years after a certification order premised upon the promise of “uniform” policies, and on the eve of trial, Plaintiffs have no evidence of a uniform scheduling policy that applied to Corporate employees. In Plaintiffs’ own words, they claim they need “to depose some of these corporate schedulers to inquire as to the practice and policies in place during the class period with regard to corporate scheduling.” (PL. Ex Parte App., p. 4:11-14.) Thus, Plaintiffs’ ex parte papers confirm Plaintiffs do not have — * The Court has repeatedly instructed Plaintiffs’ counsel that they must take depositions where the witnesses live/work (or take the depositions by video or phone). (Leggieri Decl., Ex. F [May 4, 2016 Order] “If Plaintiffs wish to take the deposition of Marianne Sheeler, it will foike place. . . in Austin, Texas.”; Ex. G [Reporter’s Transcript, June 22, 2016], 51:23-52:4 (ordering the deposition of Robert Heatn to take place where he lives/works in the Bay Area).) Nevertheless, Plaintiffs’ counsel continue to insist, without any credible basis, that deposition witnesses must travel to them in San Diego. 2. DEFENDANT APPLE INC.’S OPPOSITION 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 and never had — evidence of the promised “uniformly applicable” policies necessary to maintain a class action. In short, notwithstanding Plaintiffs’ lack of diligence, Apple responded to Plaintiffs’ Sunday- afternoon request for depositions by offering to produce four of the eight requested individuals within 48 hours. Plaintiffs chose not to take any of the depositions. After almost five years of litigation, and with the motion to decertify already set on the law and motion cut-off, the Court should not sanction further delay. Accordingly, the Court should deny Plaintiffs’ unwarranted request for another extension of time to file their opposition. JULIE A. DUNNE“ TODD K. BOYER MICHAEL G. LEGGIERI LITTLER MENDELSON, P.C. Attorneys for Defendant APPLE INC. Dated: August 30, 2016 Firmwide:142476747.1 074600.1002 % DEFENDANT APPLE INC.’S OPPOSITION