Superior Court, State of California
DATE: MARCH 24, 2022 TIME: 1:30 P.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
UNLESS OTHERWISE STATED (SEE RULE OF COURT 3.1312)
|LINE # |CASE # |CASE TITLE |RULING |
|LINE 1 |20CV372622 |Temujin Labs Inc. v. Abittan, et al. |See tentative ruling. The Court will issue the |
| | | |final order. |
|LINE 2 |21CV384151 |Weiss, et al. v. Sunpower Corporation |See tentative ruling. The Court will issue the |
| | | |final order. |
|LINE 3 |20CV371934 |Manalo v. San Jose, LLC, et al. |See tentative ruling. The Court will issue the |
| | | |final order. |
|LINE 4 |17CV306546 |Rogers v. iTy Labs Corp., et al |Because the tentative ruling may contain |
| | | |confidential information, the Court is issuing the |
| | | |tentative ruling directly to the parties. But the |
| | | |Court plans to issue the final ruling in the public|
| | | |record, unless the parties adequately justify |
| | | |sealing the final ruling. |
|LINE 5 |21CV382973 |Velasquez v. Chargepoint, Inc. |See tentative ruling. The Court will issue the |
|LINE 6 | | |final order. |
|LINE 7 | | | |
|LINE 8 | | | |
|LINE 9 | | | |
|LINE 10 | | | |
|LINE 11 | | | |
|LINE 12 | | | |
|LINE 13 | | | |
| | | | |
| | | | |
Calendar Line 1
Case Name: Temujin Labs Inc. v. Franklin Fu
Case No.: 21CV375422
These cross-actions arise from an agreement by which Defendant and Cross-Complainant Franklin Fu agreed to consult for Plaintiff Temujin Labs Inc., a Delaware corporation, (“Temujin”) and market its technology to investors. Temujin alleges that Mr. Fu demanded additional under-the-table payments for himself and secret payments to certain investors rather than performing his duties in good faith. Mr. Fu alleges that Temujin’s co-founders, Cross-Defendants Lily Chao and Damien Ding, repeatedly lied to him about a range of subjects, including Temujin’s technology and even their own identities.
Ms. Chao, Mr. Ding, and Cross-Defendant Temujin Labs Inc., a Cayman Islands corporation, (“Temujin Cayman,” collectively with Ms. Chao and Mr. Ding, “Cross-Defendants”) move to quash Mr. Fu’s attempted service of each of them. Mr. Fu opposes their motion, urging valid service was completed as to each of these Cross-Defendants, who have in any event waived their objections to service and made general appearances. As discussed below, the Court GRANTS Cross-Defendant’s motion to quash as to Temujin Cayman, but DENIES it as to Ms. Chao and Mr. Ding.
I. BACKGROUND
A. Temujin’s Complaint
In its complaint against Mr. Fu, Temujin alleges that it is a pioneer in the blockchain industry after creating a decentralized financial network for issuing confidential assets and smart contracts. (Complaint, ¶ 1.) It develops software products that carry the “Findora” brand name, including the “Findora Ledger,” an online and digital transactional system that used blockchain-based technology. (Id., ¶¶ 6–7.)
Mr. Fu is a global management and blockchain expert who founded several blockchain companies, mobile consumer apps, and other digital media start-ups in the United States and Asia. (Complaint, ¶ 8.) He has held key executive positions in various global companies, owns a venture capital and private equity firm, and has served as a strategic consultant for cryptocurrency companies. (Ibid.) On August 5, 2019, he and Temuin entered into an “Advisory Agreement” under which Mr. Fu would advise Temujin and consult on matters relating to Findora’s business. (Id., ¶ 9, Ex. A.) His primary charge was “investor relations,” in other words, using his experience and connections in the blockchain industry to market Temujin’s proprietary “privacy preserving transparency” technology to potential investors and other important actors in the blockchain industry. (Id., ¶ 10.) Mr. Fu would also consult with Temujin’s management regarding strategy to further its technology and about how that technology could be used by institutions to replace current infrastructure or deploy it in the cloud, all of which would be interoperable with the public Temujin network. (Ibid.)
Mr. Fu was required to make himself available by telephone, mail, or in person and to attend meetings using reasonable efforts. (Complaint, ¶ 10.) He agreed that his work for Temujin did not conflict with any other commitment he may have and that if any future conflict arose, he would promptly notify Temujin. (Ibid.) He also agreed to not directly or indirectly solicit away any employees or consultants of the Company for his personal benefit or any other person. (Ibid.)
But instead of doing his job under the Advisory Agreement as required, Mr. Fu focused his energy on devising unlawful schemes to enrich his other firms at Temujin’s expense. (Complaint, ¶ 12.) He repeatedly demanded that Temujin and its co-founder, Ms. Chao, pay him $3 million in Findora cryptocurrency, with a portion paid to his company Fenbushi Capital (the “extortion scheme”) and the remainder to principals of two investment funds, Dragonfly Capital and Hashkey Capital (the “bribery scheme”) so that these firms would invest in Findora and its upcoming token sale. (Ibid.) This was an attempt by Mr. Fu to obtain an “under-the-table” benefit for himself that the Advisory Agreement did not contemplate, while enriching certain investors—to the detriment of Findora and the public—by conditioning their investment on secretive, kick-back payments. (Id., ¶ 14.) Ms. Chao unequivocally refused these demands, and Mr. Fu left the company in October 2020. (Id., ¶ 19.)
Based on these allegations, Temujin filed this action for (1) breach of contract and (2) breach of the implied covenant of good faith and fair dealing against Mr. Fu on January 4, 2021.
B. Mr. Fu’s Cross-Complaint
Mr. Fu filed a cross-complaint against Temujin, Temujin Cayman, Ms. Chao, and Mr. Ding. He alleges that when he began meeting with Ms. Chao and Mr. Ding about consulting for Temujin, the company had a strong engineering team that included several Stanford Ph.Ds. and former PhD. candidates as well as the former manager of the Stanford Endowment Fund. (Cross-Complaint, ¶¶ 23–24.) But Ms. Chao and Mr. Ding lied about basic facts detailed in the Cross-Complaint, including their true identities, their relationship to one another, the maturity of Temujin’s technology, and investments that had been made in the company. (Id., ¶ 25.)
Mr. Fu agreed to consult and worked for the company for approximately 10–15 hours each week from August 2019 until the summer of 2020. Meanwhile, Ms. Chao and Mr. Ding continued to make the misrepresentations stated above, and additionally misrepresented Temujin’s “clearance from the United States Government” to sell its technology in China and their own powerful business connections. (Cross-Complaint, ¶ 28.) But investors Mr. Fu attempted to interest in Temujin—including Tencent Holdings Ltd., the massive Chinese multinational technology conglomerate holding company—were disappointed when Temujin’s product was not ready as expected, hurting Mr. Fu’s credibility with valued business partners. (Id., ¶¶ 29–30.)
Realizing that Ms. Chao and Mr. Ding were lying to him, in or about October 2020, Mr. Fu concluded that his good name required that he resign. (Cross-Complaint, ¶ 32.) He never received any of the stock or “FIN tokens” he was promised in the parties’ contract, or any compensation at all. (Ibid.) He undertook three business trips and only received modest reimbursement of out-of-pocket expenses, such as coach airfare. (Ibid.) Then, at the apparent direction of Ms. Chao and Mr. Ding, Temujin sued Mr. Fu in this case, falsely alleging that he tried to have them pay kickbacks to secure investments. (Id., ¶ 33.)
Based on these allegations, Mr. Fu asserts cross-claims for (1) fraud (against all cross-defendants), (2) negligent misrepresentation (against all cross-defendants), (3) breach of the covenant of good faith and fair dealing (against Temujin), (4) breach of contract (against Temujin), and (5) quantum merit (against all cross-defendants).
C. Procedural Background
Mr. Fu filed his Cross-Complaint on March 30, 2021. The Court (Judge Rudy) entered a stipulated order extending Temujin, Ms. Chao, and Mr. Ding’s time to respond to the Cross-Complaint to September 30, 2021.
On September 27, 2021, Culhane Meadows PLLC was retained as new counsel to Plaintiff and Cross-Defendants. Culhane Meadows sought a further extension of time from counsel for Mr. Fu, but Mr. Fu’s counsel stated he would agree only if Cross-Defendants would agree not to contest the substitute service Mr. Fu had attempted on September 28 at the office of “Findora” in Palo Alto. The parties could not reach agreement.
On September 30, Cross-Defendants attempted to file a motion for an extension of time to respond to the Cross-Complaint, but it was rejected for failure to pay first appearance and filing fees.[1] They paid these fees on November 17, 2021. The motion for an extension of time was never heard by the Court.
Following another change in counsel, Cross-Defendants filed the instant motion to quash on November 10, 2021.
II. WAIVER
Mr. Fu argues that Cross-Defendants—apparently including Temujin Cayman—have waived any challenge to the Court’s jurisdiction by failing to file a timely motion to quash, and have made a general appearance through their unsuccessful attempts to file a motion for an extension of time to respond to the Cross-Complaint.
A. Timeliness of Motion to Quash
A defendant or cross-defendant may file a motion to quash “on or before the last day of his or her time to plead or within any further time that the court may for good cause allow….” (Code Civ. Proc., § 418.10, subd. (a).) The former deadline is calculated from the date service is achieved. (Code Civ. Proc., § 432.10 [“A party served with a cross-complaint may within 30 days after service move, demur, or otherwise plead to the cross-complaint in the same manner as to an original complaint.”]; see In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 16 (Marriage of Obrecht).) So contrary to Mr. Fu’s argument, Cross-Defendant’s motion is not untimely merely because it was not filed by September 30—it depends when, and whether, service was completed.
And, in any event, the Court may extend the time to file a motion to quash for good cause even after the deadline has passed. (See Marriage of Obrecht, supra, 245 Cal.App.4th at pp. 16–17.) The Court finds good cause is present here in light of Cross-Defendant’s current counsel’s prompt service of the instant motion following their substitution into the case, and former counsel’s failed attempts to obtain an extension.
B. General Appearance
Mr. Fu further argues that Cross-Defendants’ stipulation to an extension of time and unsuccessful attempts to seek a further extension of their time to respond constitute general appearances.
“A general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to proceed. If the defendant confines its participation in the action to objecting to lack of jurisdiction over the person, there is no general appearance.” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52, citations omitted.) “[A] party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance and waived all objections to defects in service, process, or personal jurisdiction.” (Ibid., citations omitted.) In evaluating whether a filing constitutes a general appearance, “[a] court is thus required to analyze the defendant’s papers to determine if any affirmative relief could be granted on the merits….” (Id. at p. 54.)
The stipulation entered by Judge Rudy expressly provides that “WHEREAS, on or about July 9, 2021, … Mr. Fu purports to have attempted to serve his Cross-Complaint on the individuals by substitute service, which service the individuals intend to challenge by special appearance; [¶] … [¶] WHEREAS, in entering into this stipulation, the individuals reserve all rights and waive no arguments with respect to service of process or jurisdiction; NOW THEREFORE, subject to the Court’s approval, Mr. Fu, Temujin Delaware and the individuals[2] … hereby stipulate that good cause exists to extend the deadline to respond to the Cross-Complaint to September 30, 2021 to allow the parties sufficient time to meet and confer on these matters.” (Italics added.) This was not a request for affirmative relief, but was expressly an extension of time to enable the parties to meet and confer about service and a forthcoming motion to quash. And the rejected filings seeking a further extension of time must be viewed in the same light, if they are considered at all.
The California Supreme Court has stated that “[a] party who merely seeks an extension of time to plead cannot reasonably be deemed to make a general appearance. His purpose may be to obtain adequate time to determine whether or not to object to the jurisdiction of the court.” (Busching v. Superior Court of Ventura County (1974) 12 Cal.3d 44, 51 (Busching).) The Court will follow this guidance, although Mr. Fu correctly notes that the facts in Busching were not exactly the same as those here.
The Court also finds that Code of Civil Procedure section 418.10, subdivision (d) is on point. That section expressly provides that “no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, or application to the court or stipulation of the parties for an extension of the time to plead, shall be deemed a general appearance by the defendant.” (Italics added.)
In sum, there is no basis to find that Cross-Defendants have made a general appearance here.[3]
C. Conclusion
Mr. Fu’s arguments that Cross-Defendants have waived their right to challenge service of process lack merit. Temujin Cayman’s motion to quash will accordingly be granted, as Mr. Fu does not claim to have served the Cross-Complaint and has filed no proof of service concerning it.
IV. SUBSTITUTE SERVICE
Mr. Fu contends that he served Ms. Chao and Mr. Ding by substitute service on two occasions, which the Court will refer to as “Isabella” and “Findora.”
A. Legal Standard
Where the summons and complaint cannot with reasonable diligence be personally delivered to an individual defendant, substitute service is authorized. (See Code Civ. Proc., § 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 799 (Evartt).) For proper substitute service under section 415.20, subdivision (b) (“Section 415.20(b)”), each of the following elements must be shown:
1. Reasonable efforts for personal service must have been made;
2. After those efforts for personal service have failed, the process server must leave a copy of the summons and complaint at the individual’s dwelling house, usual place of business, or usual mailing address “other than a United States Postal Service post office box”;
3. the summons and complaint must be left in the presence of an adult “competent member of the household” or person “apparently in charge,” who must be told what the papers are; and
4. the process server must mail other copies of the summons and complaint to the defendant at the place where the copies were left.
(§ 415.20, subd. (b).)
“When a defendant argues that service of summons did not bring him or her within the trial court’s jurisdiction, the plaintiff has the burden of proving the facts … requisite to an effective service.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387 (Zara), internal quotation marks and citation omitted.) Filing a proof of service that states “facts showing that the service was made in accordance with the applicable statutory provisions” and otherwise complies with statutory requirements creates a rebuttable presumption of proper service, based on “the facts stated in the declaration.” (Id. at p. 390, citing Code Civ. Proc., § 684.220, subd. (b) and Evid. Code, § 647.) This presumption “arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)
B. Isabella
Mr. Fu’s counsel describes the efforts he undertook to locate Ms. Chao and Mr. Ding after the Cross-Complaint was filed. (Decl. of John Durrant ISO Opp., ¶ 2.)[4] He then declares that “[i]n early July 2021, multiple attempts were made to serve Chen and Ding at a mansion they were believed to occupy at 69 Isabella in Atherton (‘Isabella’). After those attempts, [Chao][5] and Ding were served through substituted service upon security guard posted at the mansion.” (Id., ¶ 3.)[6] But Mr. Fu provides no evidence to support this “belie[f]” that Cross-Defendants lived at Isabella, or to show that they were associated with Isabella in any way. Nor does he submit declarations of diligence by any process servers who attempted personal service at Isabella or elsewhere before substitute service was attempted.
Mr. Fu accordingly fails to meet his burden to show that substitute service at Isabella was valid. (See Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 315 [“[i]t is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served”; reversing denial of motion to vacate judgment where record reflected no such connection]; Zara, supra, 199 Cal.App.4th at p. 389 [opposing party bears the burden to show a good faith effort at personal service was made before substitute service was effected].)
C. Findora
Turning to the second attempt at substitute service, Mr. Fu submits a declaration by Ms. Chao and Mr. Ding’s former counsel stating that they were the “principal client representatives for Temujin DE.” (Durrant Decl., ¶ 11, Ex. L.) The declaration states that the representation was “in connection with the development of a new and innovative blockchain technology that has been given the name ‘Findora’ for marketing and branding purposes.” (Ibid.) This is consistent with Temujin’s admission in its own Complaint that it is “doing business in Santa Clara County under the trade name ‘Findora.’ ” (Complaint, ¶ 3.)
Mr. Durrant declares that, “[o]n September 28, 2021, after numerous attempts to track down [Chao] and Ding including at Isabella, my investigation ascertained the address of the ‘Findora Foundation’ office.” (Id., ¶ 8.)[7] Multiple declarations by process server Ellenor Rios state that “Findora Foundation” was listed as a tenant at this address, 444 High Street, Suite 300 in Palo Alto.
Ms. Rios’s declarations states that she attempted to serve Ms. Chao and Mr. Ding at Findora on September 15, 2021 at 6:17 p.m., but was unable to gain access to the property. She tried again on September 16 at 10 a.m., but was again unable to gain access. Then, on September 21 at 9:38 a.m., she gained access after she knocked on the locked door and an individual who identified himself as Yiyang Xu opened it, allowing Ms. Rios to serve him as the person apparently in charge. Ms. Rios declares that she asked if Ms. Chao or Mr. Ding were in the office and Mr. Xu stated they were not. (Decl. of Ellenor Rios ISO Opp., ¶ 5.)[8] She states that she identified herself as a process server and Mr. Xu accepted service for Cross-Defendants. (Ibid.) Ms. Chao specifically declares that she informed Mr. Xu “that the papers were service documents for Chao and Ding.” (Id., ¶ 7.) She left the office, but shortly after, Mr. Xu “proceeded to pursue me aggressively out of the building and continued chasing me for about 3 blocks,” and “yelled at me angrily,” to the point that she “was scared” and thought he “might strike or tackle me.” (Id., ¶¶ 5, 9.) The Court finds Ms. Rios’s declaration to be credible.
This evidence suffices to show that 444 High Street is the usual place of business of Temujin and, by extension, Cross-Defendants Ms. Chao and Mr. Ding, and that Mr. Xu was apparently in charge as the individual who opened the locked door to Ms. Rios’s knocking. With the additional context provided by Mr. Durrant’s declaration, the process server’s declaration creates a rebuttable presumption that the requirements of substitute service were satisfied, which Cross-Defendants do not effectively rebut. (See Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750 [“The registered process server in this case declared under penalty of perjury that he had effected substitute service on Cho by serving Hanzaki, after three attempts to personally serve Cho at his place of business. Cho was required to rebut the presumption of proper service arising from the process server’s declaration with evidence that he was not so served. He did not do so. He did not establish that Hanzaki was not his office manager, that she could not accept substitute service for him, that the address was not his usual place of business, or anything else along those lines.”].)
To explain, Cross-Defendants’ only attempt to rebut Mr. Fu’s showing is through a declaration by Mr. Xu. But the Court assigns no weight to this declaration, which avoids obvious issues and is not credible.[9] Mr. Xu denies that 444 High Street is the office or usual place of business for Ms. Chao and Mr. Ding, but does not explain whether or if he knows them; state what company Mr. Xu himself works for or identify the individuals he reports to; state whether Mr. Xu has any knowledge of or connection to Temujin; or explain his statement that he “found out that the papers were not for the company I work for” only after Ms. Rios had left the premises. Mr. Xu admits that he followed Ms. Rios and “ran after her trying to catch up with her” (Decl. of Yiyang Xu ISO Mot., ¶ 5), but then implausibly claims that he was “terrified” when Ms. Rios screamed as he chased her down the street (ibid.). Finally, Mr. Durrant submits evidence that Mr. Xu’s LinkedIn profile identified him as an engineer for “Findora Foundation” as of September 29, 2021, so the Court infers that he did work for Temujin based on the other evidence connecting the two entities.[10]
Cross-Defendants also contend that Mr. Fu fails to establish reasonable efforts to serve them in person. But Mr. Durrant’s declaration establishes that—other than Isabella, where access was blocked by a security guard—Findora was the only address Mr. Fu could find for Cross-Defendants despite research and inquiries, including to Cross-Defendants’ counsel. A process server made two unsuccessful attempts to access the office before Mr. Xu unlocked the door and accepted papers she expressly told him were service documents for Cross-Defendants.[11] Then Mr. Xu chased the process server down the street trying to give the documents back shortly after she left. The Court concludes from these facts that Mr. Fu has exercised reasonable diligence, and further attempts to serve Ms. Chao and Mr. Ding at Findora or elsewhere are unlikely to be successful.
Finally, there is no dispute that the process server’s declarations establish that the summons and complaint were properly mailed to Findora. So all of the requirements of substitute service have been satisfied.
D. Conclusion
As, discussed above, while Mr. Fu does not establish that valid service was made on Ms. Chao and Mr. Ding at Isabella, he does establish that substitute service was made on them at Findora, and they do not rebut that showing by relying on Mr. Xu’s declaration. Ms. Chao and Mr. Ding’s motion to quash will accordingly be denied based on the Findora service.
V. CONCLUSION
For the reasons discussed above, the Court GRANTS Cross-Defendant’s motion to quash as to Temujin Cayman, but DENIES it as to Ms. Chao and Mr. Ding.
The Court will prepare the order.
***
LAW AND MOTION HEARING PROCEDURES
The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at
news_media/newspdfs/2021/GeneralOrderRescindingPortionof050621GeneralOrderConcerning
ComplexCivilActions.pdf.) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.
Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612).
State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line. No court order has been issued which would allow recording of any portion of this motion calendar.
The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.
- oo0oo -
Calendar Line 2
Case Name: Max Weiss, et al. v. SunPower Corp.
Case No.: 21CV384151
This is a putative class action on behalf of residential customers who purchased allegedly defective solar panel modules manufactured by or for Defendant SunPower Corp. The parties reached a settlement, which the Court preliminarily approved in an order filed on October 21, 2021. The factual and procedural background of the action and the Court’s analysis of the settlement and settlement class are set forth in that order.
Before the Court are Plaintiff’s motions (1) for final approval of the settlement and (2) for approval of his attorney fees, costs, and service award. The motions are unopposed. As discussed below, the Court GRANTS both motions.
I. LEGAL STANDARD FOR SETTLEMENT APPROVAL
Generally, “questions whether a [class action] settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234–235 (Wershba), disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)
In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.
(Wershba, supra, 91 Cal.App.4th at pp. 244–245, internal citations and quotations omitted.)
In general, the most important factor is the strength of the plaintiffs’ case on the merits, balanced against the amount offered in settlement. (See Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130 (Kullar).) But the trial court is free to engage in a balancing and weighing of factors depending on the circumstances of each case. (Wershba, supra, 91 Cal.App.4th at p. 245.) The trial court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., citation and internal quotation marks omitted.)
The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”
(Wershba, supra, 91 Cal.App.4th at p. 245, citation omitted.) The presumption does not permit the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished,” based on a sufficiently developed factual record. (Kullar, supra, 168 Cal.App.4th at p. 130.)
II. TERMS AND ADMINISTRATION OF SETTLEMENT
The non-reversionary gross settlement amount is $4,750,000. Attorney fees of up to $1,583,333 (one-third of the gross settlement), litigation costs of up to $50,000, and administration costs of approximately $130,000 will be paid from the gross settlement. The named plaintiffs will also seek service awards of $10,000 each, for a total of $40,000.
The settlement requires Defendant to complete the replacement of the allegedly defective parts at each residential site where its Covered Solar Modules were installed by a date certain,[12] and to offer a dedicated customer care program for the benefit of settlement class members. In addition, class members who submit a valid claim will receive a pro rata payment in proportion to the total Covered Solar Modules originally installed on their residence compared with the other claimants. If every class member submitted a claim, Plaintiffs estimated that the average payment to each of the 16,981 class members would be $173.52. Based on the estimated 10 to 20 percent claims rate, the average payment was expected to be between $866.63 and $1,735.27. Funds associated with checks uncashed after 180 days will be tendered to GRID Alternatives.[13]
Pursuant to the most recent modification to the settlement, class members who do not opt out will release all claims, liabilities, etc., whether known or unknown, “that are asserted or alleged in the Complaint reasonably related to the manufacture, advertising, marketing, distribution, sale, performance, or retrofitting of the Subject Microinverters in the Covered Solar Modules related to the alleged defect giving rise to the Litigation, compliance with the limited warranty(ies) applicable to the Subject Microinverters in the Covered Solar Modules related to the alleged defect giving rise to the Litigation, or any other matters alleged in the Complaint in the Litigation reasonably related to the Subject Microinverters….” The released claims “do not include any release of alleged personal injury claims or any release of claims regarding the Covered Solar Modules that do not reasonably relate to the Subject Microinverters.”
The notice process has now been completed. There was one objection to the settlement,[14] and 12 requests for exclusion from the class were received.[15] Of 17,091 notice packets, 293 were re-mailed after initially being returned and 804 were ultimately undeliverable. Email notice was also provided to 12,735 class members, with 11,821 emails successfully delivered. Considering both the mail and email notice, only 293 class members could not be reached.
Per the Court’s instructions, the administrator also conducted a supplemental mailing and email campaign on January 14, 2022. The supplemental mailing instructed class members how to find their Notice ID and provided revised dates for the final approval hearing and to submit a claim. The supplemental mailing was sent via postcard to 5,270 class members and via email to 11,821 class members.
The administrator has received a total of 2,484 claims, 282 of which do not match the settlement class list. The 2,202 apparently valid claims that were submitted represent a claims rate of 12.88 percent, within the range that was estimated at preliminary approval. Assuming confirmation that the 282 claims that do not match the settlement class list are not from class members, the average payment to each of the 2,202 claimants will be $1,338, or $64.80 per Covered Solar Module.[16] [17]
At preliminary approval, the Court found that the proposed settlement provides a fair and reasonable compromise to Plaintiffs’ claims. It finds no reason to deviate from these findings now. The Court thus finds that the settlement is fair and reasonable for purposes of final approval.
III. ATTORNEY FEES, COSTS, AND INCENTIVE AWARD
Plaintiffs seek a fee award of $1,583,333.33, or one-third of the gross settlement. This is somewhat higher than the twenty- to twenty-five percent typically requested in a consumer class action with a large class size, but represents the standard percentage awarded in other types of class actions. Plaintiffs also provide a lodestar figure of $956,956, based on 1,477 hours spent on the case by counsel billing at $480–830 per hour. Plaintiffs’ request results in a reasonable multiplier of 1.65.
Overall, counsel’s lodestar is reasonable, and the Court finds the multiplier is appropriate given the contingent nature of the fee award, the uncertainty of recovery here, and the substantial time and costs invested by counsel in the case. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [in order to reflect the fair market value of attorney services, lodestar may be adjusted with a multiplier based on factors including the extent to which the nature of the litigation precluded other employment by the attorneys and the contingent nature of the fee award].) Viewed in light of this cross-check, the Court approves the one-third percentage fee requested. (See Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 488, 503–504 [trial court did not abuse its discretion in approving fee award 0f 1/3 0f the common fund, cross-checked against a lodestar resulting in a multiplier of 2.03 to 2.13].)
Plaintiffs’ counsel also requests $39,029.93 in litigation costs, below the estimate provided at preliminary approval. Plaintiffs’ costs appear reasonable and are approved. The $130,000 in administrative costs are also approved.
Finally, Plaintiffs request service awards of $10,000 each. To support their request, they submit declarations describing their efforts on the case. The Court finds that the class representatives are entitled to enhancement awards and the amount requested is reasonable.
IV. ORDER AND JUDGMENT
In accordance with the above, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
The motion for final approval is GRANTED. The following class is certified for settlement purposes:
All persons in the United States who purchased one or more Covered Solar Modules[18] for residential use through a cash or financed transaction from SunPower or a SunPower authorized dealer and who currently own or formerly owned a residence on which the purchased Covered Solar Modules are installed, as well as any current owner of any such residence. For the avoidance of doubt, the Settlement Class does not include persons in the United States who leased Covered Solar Modules for residential use or who currently own or formerly owned a residence on which leased Covered Solar Modules are installed.
Excluded from the class are the 12 claimants identified in the first page of Exhibit B to the March 3, 2022 Declaration of Eric Schachter of A.B. Data, Ltd.
Judgment shall be entered through the filing of this order and judgment. (Code Civ. Proc., § 668.5.) Plaintiffs and the members of the class shall take from their complaint only the relief set forth in the settlement agreement and this order and judgment. Pursuant to Rule 3.769(h) of the California Rules of Court, the Court retains jurisdiction over the parties to enforce the terms of the settlement agreement and the final order and judgment.
The Court sets a compliance hearing for December 1, 2022 at 2:30 P.M. in Department 1. At least ten court days before the hearing, class counsel and the settlement administrator shall submit a summary accounting of the net settlement fund identifying distributions made as ordered herein; the number and value of any uncashed checks; amounts remitted to the cy pres beneficiary; the status of any unresolved issues; and any other matters appropriate to bring to the Court’s attention. Counsel shall also submit an amended judgment as described in Code of Civil Procedure section 384, subdivision (b). Counsel may appear at the compliance hearing remotely.
The Court will prepare the order and judgment.
***
LAW AND MOTION HEARING PROCEDURES
The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at
RescindingPortionof050621GeneralOrderConcerningComplexCivilActions.pdf.) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.
Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612).
State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line. No court order has been issued which would allow recording of any portion of this motion calendar.
The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.
- oo0oo -
Calendar Line 3
Case Name: Joanne Manalo, et al. v. San Jose, LLC, et al
Case No.: 20CV371934
This is a putative class action on behalf of all non-exempt registered nurses working at Regional Medical Center from October 22, 2019 to the present. Plaintiff Joanne Manalo (“Plaintiff”) seeks to recover premiums for missed meal and rest periods, unpaid overtime, and related statutory penalties.
Currently before the Court is Plaintiff’s motion to compel further responses to special interrogatories and requests for production of documents propounded to Defendant Regional Medical Center (“Defendant”).
I. PRELIMINARY MATTERS
Defendant urges this court to deny the motion on the ground that Plaintiff’s separate statement fails to comply with the rules of court. Specifically, Defendant contends that Plaintiff failed to include the text of the special interrogatories and responses in the separate statement for special interrogatories 14, 16, and 19, to which she moves to compel further responses. Further, Defendant argues that the separate statement fails to provide “[a] statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute.” (Rules of Court, rule 3.1345(c)(3), italics added.)
Motions to compel further responses to special interrogatories (“SIs”) and requests for production of documents (“RPDs”) require the filing of a separate statement. (Rules of Court, rule 3.1345(a)(2)-(3).) The separate statement must provide “all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Rules of Court, rule 3.1345(c).) The separate statement must also be “full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Rules of Court, rule 3.1345(c).) Finally, separate statements must include: (1) the text of the discovery request, (2) the text of the response or objection and any supplemental responses if given, and (3) a statement of the factual and legal reasons for compelling further responses. (Rules of Court, rule 3.1345(c)(1)-(3).) The court has discretion to deny a motion to compel further responses where the moving party has provided a deficient separate statement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)
Defendant is correct that Plaintiff has failed to provide a separate statement with respect to certain SIs. However, Defendant has already agreed to provide further responses to all of the SIs in question and, in opposition to the motion, indicates that it will supplement its responses with respect to all of the SIs in question. (Opposition at p. 6.) Accordingly, the court will not deny the motion on this ground.
Defendant also argues that Plaintiff has failed to provide a statement of the factual and legal reasons for compelling further responses for each request at issue. Plaintiff’s separate statement provides the text of the request at issue and Defendant’s response but it groups these together and provides reasons for compelling further responses for each group of responses, rather than providing reasons relating to each individual request. After Defendant filed its opposition to the motion, Plaintiff filed a reformatted separate statement containing the same content but repeated the reasons for compelling further responses after the text of each request and response. The court did not find the deficiencies in the separate statement to cause undue confusion and Defendant was able to file substantive opposition to the motion. Accordingly, the court declines to deny the motion on the ground that the separate statement is deficient.
II. MOTION TO COMPEL FURTHER RESPONSES
a. Special Interrogatories
Plaintiff moves to compel further responses to SIs 2[19] and 13 through 19.[20] These generally seek identification and contact information for potential class members (limited to a sample of 400), supervisors, and those who created Defendant’s policies regarding breaks and overtime.
A responding party must provide non-evasive answers to interrogatories that are “as complete and straightforward…to the extent possible,” and, if after a reasonable and good faith effort to obtain the information they still cannot respond fully to an interrogatory, the responding party must so state in its response. (Code Civ. Proc., § 2030.220.)[21] If the responding party provides incomplete or evasive answers, or objections without merit, the propounding party’s remedy is to seek a court order compelling a further response to the interrogatories. (§ 2030.300.) If a timely motion to compel answers is filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.)
The parties agree that Defendant already agreed to supplement its responses to SIs 2 and 13 through 19. Defendant argues that the agreement to supplement its responses renders the motion moot. Plaintiff, on the other hand, argues that Defendant has already had months in which to supplement its responses and it had failed to do so. Accordingly, Plaintiff requests that the court order Defendant to provide further responses to SIs 2 and 13 through 19.
Because Defendant has not yet provided supplemental responses, the motion is not moot as to the SIs. As Defendant makes no attempt to justify any of the objections initially made in response to the special interrogatories, the objections are overruled. Defendant is ordered to provide further code-compliant responses to SIs 2 and 13 through 19 within 30 days of the date of this order.
b. Requests for Production of Documents
Plaintiff moves to compel further responses to RPDs 7, 14 through 16, 21, 23, 24, 35, 36, 38 through 42, 43 through 52, 56, 58, and 62 through 64.
If a party demanding a response to an inspection demand deems: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general, that party may move for an order compelling further response to the demand. (§ 2031.310, subd. (a).) The moving party must set forth good cause to obtain the requested items. (§ 2031.310, subd. (b).) The moving party must establish good cause by showing both 1) relevance to the subject matter of the case, and 2) specific facts justifying discovery. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
1. Documents Defendant Has Already Agreed to Produce
Defendant does not dispute that it agreed to produce certain documents Plaintiff seeks in the instant motion. Defendant has agreed to produce some documents in response to RPDs 7, 14 through 16, 21, 24, 36, 39 through 42, 44, and 49 through 52. But, Defendant contends in opposition to the motion that providing all documents requested in RPDs 23, 35, 38 through 42, 44 through 47, and 49 through 52, would be unduly burdensome and oppressive.
Defendant does not argue against producing the documents requested in RPDs 7, 14 through 16, and 36 in either its opposition or its response to Plaintiff’s separate statement.[22] As Defendant does not dispute that it has agreed to produce documents responsive to RPDs 7 and 14 through 16, as limited in the parties’ meet and confer efforts, the court will grant the motion with respect to RPDs 7, 14 through 16, and 36. Defendant is ordered to provide further responses to RPDs 7, 14 through 16, and 36 within 30 days of the date of this order and to produce the documents available now within 30 days of the date of this order. With respect to the documents requiring sampling, review, or a Belaire-West notice, these are ordered to be produced within 20 days of the date those processes are completed.
Plaintiff contends that the representative sample of 400 nurses’ wage statements and time records (RPDs 14 and 15) should be chosen based on the method she proposed to Defendant as Defendant failed to respond to the proposal. Defendant makes no objection to Plaintiff’s method of selection. Accordingly, Defendant is ordered to randomly select the sample using the method proposed by Plaintiff.
With respect to RPDs 21 and 24, Defendant argues only that these requests are moot because it has agreed to produce them and that the court should deny the motion due to the deficiencies in the separate statement, as these arguments have already been rejected above, the motion is granted as to RPDs 21 and 24, as limited during the parties’ meet and confer efforts.[23]
2. Communications Regarding Breaks and Overtime Between Management and Nurses
As mentioned above, Defendant agreed to produce certain documents in response to RPDs 23, 35, 38 through 42, 44 through 47, and 49 through 52 and argues that the motion is moot on that basis. These RPDs generally request all communications between management and nurses and electronically stored information (“ESI”) regarding meal and rest breaks and overtime. Defendant indicates that it has agreed to produce its employee handbook and policies that would be responsive to Plaintiff’s requests and, therefore, Plaintiff will have the information she needs to determine Defendant’s policies regarding breaks and overtime. Plaintiff argues that, through employee interviews, she learned that Defendant frequently communicated with nurses via email regarding breaks and overtime.
Defendant assets that producing the additional communications and ESI would be unduly burdensome and oppressive. It argues that, to produce instructions and communications on an individualized basis, it would take over 54,000 labor hours and 15 to 20 days to pull and process the emails so that they can be reviewed. It contends that the search would produce more than three million documents, which would need to be reviewed by attorneys, for a total cost of more than $3.7 million dollars inclusive of attorney review. It asks the court to limit RPDs 39 through 42, 44 through 47, and 49 through 52 to the timeframe of October 22, 2019 to the present.
Plaintiff clarifies that she is not seeking individual emails regarding instructions but rather group emails from “directors, managers, or coordinators” to potential class members regarding meal breaks, rest breaks, overtime policies, and time management. She also states that she has already agreed to limit the time period for the documents sought to October 22, 2019. Plaintiff also contends that Defendant’s estimates regarding the time and costs to produce the documents are incorrect and inflated. Further, Plaintiff argues that Defendant has failed to discuss some of the section 2031.310 factors in its undue burden analysis.
Section 2031.310 provides, (d) “In a motion under subdivision (a) relating to the production of electronically stored information, the party or affected person objecting to or opposing the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of the undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.” (§ 2031.310, subd. (d).) “If the party or affected person from whom discovery of electronically stored information is sought establishes that the information is from a source that is not reasonably accessible because of the undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to any limitations imposed under subdivision (g).” (§ 2031.310, subd. (e).) “If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery.” (§ 2031.310, subd. (f).)
“The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exists: [¶] (1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive. [¶] (2) The discovery sought is unreasonably cumulative or duplicative. [¶] (3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought. [¶] (4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” (§2031.310, subd. (g).)
“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 418 (West Pico).) “[An] objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (Id. at p. 417.)
A party objecting to discovery on the ground of undue burden must show that the amount of work required is so great, and the utility of the information sought so minimal, that it would defeat the ends of justice to require a response. (Columbia Broadcasting System, Inc. v. Sup. Ct. (1968) 263 Cal.App.2d 12, 19.) As such, the objecting party must provide specific facts as to how much work, time, and expense would be required to respond to the discovery and/or produce responsive documents. (West Pico, supra, 56 Cal.2d at p. 418.) The court should balance the purpose and need for the information against the burden that production entails, including costs. (Id.)
“The objection of burden is valid only when that burden is demonstrated to result in injustice. Hence, the trial court is not empowered to sustain an objection in toto, when the same is predicated upon burden, unless such is the only method of rendering substantial justice.” (West Pico, supra, 56 Cal.2d at p. 418.) The court must “recognize the discretionary power to grant in part and deny in part, and to balance the equities, including costs, that is to balance the purpose and need for the information as against the burden which production entails.” (Ibid.) It has been held that a discovery request was “oppressive” where it would necessitate a review of 13,000 files, which would take five claims adjusters approximately 5.42 full-time work-weeks each. (Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318.)
It is not entirely clear that Defendant’s time and cost estimates are accurate as it appears that they were calculated based on the wording of Plaintiff’s RPDs prior to the limiting of those requests during meet and confer efforts. This is particularly important because the vast bulk of the projected costs (approximately $3.4 million out of a total of $3.7 million) is made of fees for attorney document review. The costs to make the email communications searchable is much lower at approximately $300,000. The attorney document review is presumably only necessary once responsive emails have been found so the limitations Plaintiff has agreed to are likely to have a major impact on the time and costs of production.
Plaintiff argues that the potential amount in controversy is approximately $66 million and, she argues, the projected $3.7 million cost as estimated by Defendant is not unduly burdensome. The parties have not provided information regarding the relative resources possessed by each of them but, presumably, a large hospital would have the lion’s share of resources when compared with an individual nurse or group of nurses should class certification occur.
With respect to the importance of the discovery, Plaintiff argues that this information is necessary to determine Defendant’s policies and practices with respect to overtime and breaks. Defendant contends that the information sought is unnecessary because Plaintiff will receive Defendant’s official policies. In the court’s opinion, the discovery is important because, as a practical matter, Defendant’s managers may not have followed the official policies and the communications may provide information regarding Defendant’s managers’ practices. Additionally, the managers may have instructed the nurses to follow the policies or not. The discovery is clearly relevant and Plaintiff’s counsel indicates that interviews with Defendant’s employees revealed that Defendant’s managers communicated regarding overtime and breaks via email, providing instructions or reprimands regarding the policies. It does not appear that Plaintiff has another method of obtaining the same information. Accordingly, the undue burden objection is overruled as to RPDs 23, 35, 38 through 42, 44 through 47, and 49 through 52.
The court finds that good cause supports the requests. The motion is granted with respect to RPDs 23, 35, 38 through 42, 44 through 47, and 49 through 52 as limited in time to the period of October 22, 2019 to the present and as further limited as to content as Plaintiff agreed during meet and confer. Defendant is ordered to provide further responses to RPDs 23, 35, 38 through 42, 44 through 47, and 49 through 52 within 30 days of the date of this order and to provide responsive documents as soon as possible after the indexing and searching process is complete.
To the extent privacy concerns are implicated when the documents are reviewed, the parties are ordered to meet and confer to develop and present to the court a mutually-agreeable protective order or method of redaction.
Defendant makes objections based on attorney client privilege and work product doctrine. These objections are preserved. To the extent that Defendant withholds any documents based on attorney client privilege or the work product doctrine, Defendant shall provide a privilege log identifying each document withheld and sufficient information for Plaintiff to evaluate the merits of the objection. Defendant’s other objections, not justified in its opposition, are overruled.
3. Staffing Adequacy Documents
Plaintiff seeks further responses and responsive documents regarding nurse staff requirements and staffing adequacy in RPDs 43, 48, 53, and 63 through 64. Defendant contends that producing these documents would result in an undue burden as discussed above with respect to communications regarding breaks and overtime. In her reply brief, Plaintiff indicates that if Defendant agrees to produce the documents responsive to RPD 60, she will withdraw RPDs 43, 48, 53, and 63 through 64 without prejudice. As the court will grant the motion as to RPD 60, it finds that this is an appropriate compromise between Plaintiff’s need for the documents and the burden on Defendant in producing the documents in question. Accordingly, the motion is denied as to RPDs 43, 48, 53, and 63 through 64.
4. Nurse Complaints
Plaintiff seeks further responses and responsive documents to RPDs 58 through 62 which generally seek documents showing nurses’ prior complaints regarding meal and rest breaks, overtime, and staff shortages. She contends that the records will show a pattern and practice of violating the Labor Code and Defendant’s knowledge of those violations and any actions Defendant took to investigate or address these concerns. Plaintiff indicates that she observed nurses making complaints on the form “assignment despite objections” regarding inadequate staffing and inadequate meal breaks.
In its opposition, Defendant objects to the production of these documents on the grounds that the RPDs were overbroad and that producing these documents would be highly burdensome. Defendant contends that the only way to find any relevant nurse complaints would be to search through the nurses’ individual personnel files and communications for complaints.
In her reply, Plaintiff clarifies that she is that, with respect to each RPD, she is seeking only one category of documents, labelled “assignment despite objections” in which the nurses complained of inability to take breaks, unpaid meal or rest break premiums, and inadequate nurse staffing. Plaintiff also agreed in reply to limit the scope of the demands to a representative sample of 400 nurses.
In light of the limitations Plaintiff has agreed to, Defendant’s overbreadth objection is overruled. With respect to Defendant’s undue burden contention, Defendant’s statement that there is no centralized location where this information is kept and the declaration of Defendant’s Vice President of Human Resources indicating that it would take “dozens and dozens of man hours” to review these documents is insufficient as Defendant has not provided specific facts regarding the burden involved in producing these documents. (See West Pico, supra, 56 Cal.2d at p. 417.) Accordingly, the undue burden objection is overruled.
The court finds that good cause supports these requests for the reasons explained by Plaintiff. The motion is granted as to RPDs 58 through 62 as limited by Plaintiff’s agreement to a sample of 400 potential class members and to the limited category of documents discussed above. Defendant is ordered to provide further responses within 30 days of the date of this order and to produce responsive documents within 30 days of when the sampling and review process is complete.
To the extent privacy concerns are implicated when the documents are reviewed, the parties are ordered to meet and confer to develop and present to the court a mutually-agreeable protective order or method of redaction.
Defendant makes objections based on attorney client privilege and work product doctrine. To the extent that Defendant withholds any documents based on attorney client privilege or the work product doctrine, Defendant shall provide a privilege log identifying each document withheld and sufficient information for Plaintiff to evaluate the merits of the objection. Defendant’s remaining objections are overruled as it did not attempt to justify them in its opposition.
5. Categorization of the Documents Produced
Plaintiff requests that this court order that Defendant categorize the document production (Bates Numbers 1 through 218) as required under section 2031.280, subdivision (a). Defendant does not object to this request. Accordingly, Defendant is ordered to categorize the documents already produced (Bates Numbers 1 through 218) and any documents produced as a result of this order in accordance with section 2031.280, subdivision (a).
III. CONCLUSION
The motion is GRANTED with respect to SIs 2 and 13 through 19. Defendant is ordered to provide further code-compliant responses to SIs 2 and 13 through 19 within 30 days of the date of this order. The motion is also GRANTED with respect to 7, 14 through 16, 21, 23, 24, 35, 36, 38 through 42, 44 through 47, 49 through 52, and 58 through 62. Defendant is ordered to provide further code-compliant responses to these requests and to produce all currently-available responsive documents within 30 days of the date of this order. With respect to documents requiring sampling, review, or a Belaire-West notice, Defendant must produce the responsive documents within 30 days of the date that process is complete. The motion is DENIED with respect to RPDs 43, 48, 53, and 63 through 64.
Defendant is ordered to categorize the documents already produced (Bates Numbers 1 through 218) and any documents produced as a result of this order in accordance with section 2031.280, subdivision (a).
- oo0oo -
Calendar Line 4
Case Name:
Case No.:
- oo0oo -
Calendar Line 5
Case Name: Daniella Velasquez v. ChargePoint, Inc., et al.
Case No.: 21CV382973
This is a putative class action on behalf of employees of Defendant ChargePoint, Inc., alleging failure to pay overtime, failure to compensate employees for missed meal and rest periods, and other wage and hour violations.
Before the Court are Plaintiff’s motions to compel further responses to (1) special interrogatories (set one), nos. 1–4 (“SI”s) and (2) requests for production of documents (set one) (“RPD”s), nos. 10–21, 23–25, 27, and 29. Plaintiff seeks monetary sanctions in connection with both motions, and Defendant opposes both the motions and the requests for sanctions. As discussed below, the Court GRANTS Plaintiff’s motions and awards monetary sanctions in a reduced amount.
I. LEGAL STANDARDS
A party propounding a request for production may move for an order compelling a further response if it deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, or an objection is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 (“Kirkland”).) Good cause is established simply by a fact-specific showing of relevance. (Kirkland, supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Ibid.)
A party propounding interrogatories and requests for admission may also move for an order compelling further responses if it deems an answer is evasive or incomplete and/or an objection is without merit or too general. (Code Civ. Proc., §§ 2030.300, subd. (a) and 2033.290, subd. (a).) The statutes do not require any showing of good cause in support of such a motion. (See id., §§ 2030.300 and 2033.290; see also Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221 (“Coy”).) The burden is on the responding party to justify any objections or failure to fully answer. (Coy, supra, 58 Cal.2d at pp. 220–221.)
II. THE DISPUTED REQUESTS
SIs 1 & 2 seek contact information for Defendant’s former and current employees who are members of the putative class, while SIs 3 & 4 direct Defendant to state the total number of such former and current employees. Defendant responded by interposing objections.
RPDs 10–21, 23, and 29 seek relevant employment policies applicable to members of the putative class. RPDs 24–25 demand all time and pay records for covered employees in their native format. Finally, RPD 27 calls for documents that explain the job descriptions and/or duties for each of ChargePoint’s hourly/non-exempt positions. Good cause supports these requests, which are all clearly and directly relevant to Plaintiff’s claims. But again, Defendant responded with objections.
In opposition to Plaintiff’s motions, Defendant abandons most of its objections, but argues that the disputed SIs and RPDs are premature because Plaintiff has not offered evidence to support the merits of her claim that she was employed by ChargePoint as opposed to its contractor, West Valley Contractors.[24]
As noted by Defendant, the putative class is defined to include three groups: (1) asserted employees who, like Plaintiff, were hired through West Valley Contractors; (2) asserted employees who were hired through other, unspecified staffing agencies; and (3) employees hired directly by Defendant. (See Complaint, ¶ 13 [defining the proposed class as “[a]ll current and former California-based … hourly-paid or non-exempt employees (whether hired directly or through a staffing agency) of Defendants within the State of California at any time during the period from December 17, 2016 to final judgment”].) Notably, Defendant has not responded to the disputed discovery requests as to any of these three groups, but urges that it offered to produce discovery concerning the first group during meet and confer and argues that the Court should limit discovery to this group until Plaintiff “first provide[s] some evidence that ChargePoint was her employer.” (Opp. p. 1, italics added.) Elsewhere, ChargePoint argues that the Court should deny Plaintiff’s motions in their entireties.
The Court agrees with Plaintiff that Williams v. Superior Court (2017) 3 Cal.5th 531 (Williams) is the key authority here. Williams held that—as in a putative class action—the contact information for the entire group of employees a plaintiff seeks to represent under the Private Attorneys General Act (“PAGA”) “is routinely discoverable as an essential prerequisite to effectively seeking group relief, without any requirement that the plaintiff first show good cause” regarding the scope of the impacted group. (Id. at p. 538; see also id. at p. 549 [“[t]he trial court had no discretion to disregard the allegations of the complaint making this case a statewide representative action from its inception”].) True, Williams did not specifically address an employee’s allegations of joint employment via a contractor, but its clear direction is equally applicable in this context: “California law has long made clear that to require a party to supply proof of any claims or defenses as a condition of discovery in support of those claims or defenses is to place the cart before the horse,” and the fact “[t]hat the eventual proper scope of a putative representative action is as yet uncertain is no obstacle to discovery; a party may proceed with interrogatories and other discovery methods precisely in order to ascertain that scope.” (Williams, supra, 3 Cal.5th at p. 551.)[25]
Here, information about the entire putative class is relevant to class certification as well as the ultimate merits of the class claims, and discovery has not been bifurcated or otherwise limited in scope. Meanwhile, employees’ privacy interests can be protected through the Belaire-West process and by the existing protective order in this case.[26] The discovery Plaintiff seeks is appropriate and not “premature.”
Defendant cites CVS Pharmacy, Inc. v. Superior Court (2015) 241 Cal.App.4th 300 (CVS Pharmacy) and Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820 for the proposition that “precertification discovery” is not a matter of right. But these cases predate Williams and address the application of so-called “Parris balancing” in situations where a putative class representative has lost standing, or never had standing, to represent any portion of the putative class. Even assuming that Parris balancing applies here, it requires the Court to “ ‘expressly identify any potential abuses of the class action procedure that may be created if the discovery is permitted, and weigh the danger of such abuses against the rights of the parties under the circumstances.’ ” (CVS Pharmacy, supra, 241 Cal.App.4th at p. 308, quoting Parris v. Superior Court (2003) 109 Cal.App.4th 285, 301, italics added.) Here, there is no evidence that Plaintiff lacks a good faith basis to allege that ChargePoint was her joint employer and jointly employs workers that are formally employed by its various contractors. ChargePoint identifies no particular threat of abuse in this case, merely citing the “vast” and “sweeping” scope of Plaintiff’s requests in general terms. This sounds like a burden argument—which ChargePoint does not substantiate as it is required to do. (See Williams, supra, 3 Cal.5th at pp. 549–550 [an objection based upon burden must be supported by evidence showing the quantum of work required].) Ultimately, the Court finds that the potential benefits of the requested discovery to the putative class outweigh any potential for abuse here.
Plaintiff’s motions will therefore be granted as to all of the disputed requests.
III. MONETARY SANCTIONS
Plaintiff makes a code-compliant request for monetary sanctions against Defendant and its counsel in connection with each of her motions. Since Plaintiff prevailed on both motions, Defendant did not act with substantial justification in opposing them, and no other circumstances render an award of sanctions unjust, the Court will award sanctions. (Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h).) While it appears that the parties were close to avoiding the need for these motions through meet and confer—which the Court encourages—the motions were ultimately necessary. Defendant chose to stand on objections that it largely abandoned on opposition rather than providing even the uncontested portion of the requested discovery or moving for a protective order to sequence discovery in the manner it preferred. This was not substantially justified.
Plaintiff seeks $4,610 in sanctions in connection with her motion concerning the SIs, representing 6 hours of actual time and 7 hours of anticipated time spent in connection with the motion, billed at $350 per hour. She seeks $5,310 in connection with her motion to compel further responses to the RDPs, for 7 hours of actual time and 8 hours of anticipated time at $350 per hour. The Court finds that the time actually spent by Plaintiff’s counsel in drafting these motions and counsel’s hourly rates are reasonable. But it will award only 8 hours of time for reviewing Defendant’s single, consolidated opposition and preparing a single, consolidated reply. The Court will accordingly award $7,350 in sanctions to Plaintiff (21 hours x $350/hr.), plus $120 in filing fees, for a total award of $7,470 against Defendant.
IV. CONCLUSION
Plaintiff’s motions to compel further responses are both GRANTED in their entireties. Defendant shall serve verified, code-compliant further responses to the requests at issue within 30 calendar days of the filing of this order as to SIs 3 & 4 and RPDs 10–21, 23, 27, and 29, and within 20 calendar days of the completion of the Belaire-West process as to the remaining requests. The responses shall be without objection, except for privilege.
The parties shall meet and confer on a form of Belaire-West notice and notice procedure. If they encounter any issues in this regard, they may address them with the Court at the hearing on Plaintiff’s motions and/or the case management conference scheduled for April 14.
Defendant shall pay $7,470 in sanctions to Plaintiff within 60 days of the date of this order.
The Court will prepare the order.
***
LAW AND MOTION HEARING PROCEDURES
The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at
news_media/newspdfs/2021/GeneralOrderRescindingPortionof050621GeneralOrderConcerning
ComplexCivilActions.pdf.) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.
Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612).
State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line. No court order has been issued which would allow recording of any portion of this motion calendar.
The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.
- oo0oo -
Calendar Line 6
See line 5.
- oo0oo -
Calendar Line 7
See line 6.
- oo0oo -
Calendar Line 8
Case Name:
Case No.:
- oo0oo -
Calendar Line 9
Case Name:
Case No.:
- oo0oo -
Calendar Line 10
Case Name:
Case No.:
- oo0oo -
Calendar Line 11
Case Name:
Case No.:
- oo0oo -
Calendar Line 12
Case Name:
Case No.:
- oo0oo -
Calendar Line 13
Case Name:
Case No.:
- oo0oo -
-----------------------
[1] Counsel for Cross-Defendants declares that a corrected motion was filed on October 1, but the Court’s docket does not reflect that any such motion was filed, and the version attached to counsel’s declaration is not file-stamped.
It appears from the Court’s records that Cross-Defendants made multiple attempts to file their original motion for an extension of time on September 30, but these filings were all rejected for failure to pay the required fees. Cross-Defendants then attempted to file the corrected motion on October 1, but it was rejected for the same reason.
[2] Temujin Cayman was not a party to this stipulation.
[3] Mr. Fu’s authorities are not to the contrary. (See Mt. Holyoke Homes, LP v. California Coastal Com. (2008) 167 Cal.App.4th 830, 844 [party that “clearly participated in the Commission’s proceedings in a significant manner for several years” was estopped from challenging its jurisdiction]; Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145 [parties that filed answers “became subject to the trial court’s personal jurisdiction and lost their right to quash the service”].)
[4] Cross-Defendants’ objections that this paragraph of Mr. Durrant’s declaration are vague and lack foundation are OVERRULED, since the bulk of the paragraph describes efforts Mr. Durrant personally undertook to locate Ms. Chao and Mr. Ding.
[5] Mr. Durrant refers to Ms. Chao by another name, Yuting Chen. To avoid confusion, this order refers to her by the name used throughout the Cross-Complaint, Lily Chao.
[6] Cross-Defendants’ objections that Mr. Durrant’s statement that Ms. Chao and Mr. Ding were served by substitute service is (1) an improper legal conclusion and (2) lacks foundation are SUSTAINED.
[7] Mr. Fu does not object to these portions of Mr. Durrant’s declaration.
[8] Cross-Defendants’ various objections to Ms. Rios’s declaration are OVERRULED, although the Court does not rely on any legal conclusions stated in the declaration.
[9] Given this conclusion, the Court need not rule on Mr. Fu’s objections to Mr. Xu’s declaration. The Court assumes without deciding that Mr. Xu’s declaration, in its entirety, is admissible, but finds it not to be credible for the reasons discussed above.
[10] Cross-Defendants’ objections that screenshots of Mr. Xu’s LinkedIn profile are irrelevant are OVERRULED. While these screenshots do not directly tie the Cross-Defendants to Findora or indicate that 444 High Street is their usual place of business, their former counsel’s declaration, combined with the process server’s declarations and Temujin’s admissions, provide enough evidence for the Court to infer these connections exist.
Mr. Fu argues that there is evidence that Mr. Xu later altered his LinkedIn profile to conceal his connection to Findora, but the Court cannot come to any firm conclusion about this given the incomplete screenshots that Mr. Fu submits and the failure of Mr. Durrant’s declaration (as opposed to Mr. Fu’s brief) to address the changes made to the profile.
[11] While “each case must be judged upon its own facts” (Evartt, supra, 89 Cal.App.3d at p. 801), “[t]wo or three attempts to personally serve a defendant at a proper place ordinarily qualifies” as reasonable diligence (Zara, supra, 199 Cal.App.4th at p. 389, citing Weil & Brown, Civil Procedure Before Trial (The Rutter Group), ¶ 4:196).
[12] As of March 3, 2022, SunPower has replaced the Subject Microinverters at 16,260 of the 17,077 residential sites where the Covered Solar Modules were installed. SunPower has reported that the 817 sites at which Subject Microinverters have not been replaced fall within the exceptions set forth in the Settlement Agreement; most are sites where the homeowner has failed to respond to SunPower’s notifications to arrange for the replacement.
[13] GRID is a non-profit charitable organization dedicated to building community-powered solutions to advance economic and environmental justice through renewable energy, including bringing solar energy to disenfranchised communities.
[14] The Court has read and considered this objection, filed by former named plaintiff Linda Tonoli. The Court appreciates Ms. Tonoli’s feedback regarding the settlement, but her objections do not change the Court’s view that the settlement is fair and reasonable to the class. The Court notes that the estimated value of the class’s lost energy production based on SunPower’s data (up to $17,830,050) was discussed in its order granting preliminary approval, and the estimated value of lost SRECs ($442,982 to $1,550,439) is discussed in the Supplemental Declaration of Shanon J. Carson filed on March 17, 2022. Ultimately, the average payment to settlement class members will be about $1,338, or $64.80 per Covered Solar Module. Based on this estimate, Ms. Tonoli herself should recover over 60 percent of the damages she estimates in her objection, which is a good result for a settlement.
[15] A total of 139 requests for exclusion were received, but 123 of them—which were all submitted via a January 10, 2022 letter from attorney Steven Marchbanks of Premier Legal Center—are not from settlement class members. The administrator explains that the individuals in question are not included in the data set furnished by SunPower and many of their exclusion requests include information indicating that they are not class members (i.e. the request indicates that their system is a leased system or that the date of purchase/commission of their solar modules pre-dates the manufacture of the Covered Solar Modules).
[16] This estimate is based on a net settlement fund of $2,946,666.67, assuming the maximum deductions from the settlement fund that were disclosed in the class notice are awarded. The slightly lower deductions actually approved by the Court result in a net settlement fund of $2,957,637.07, so the average claimant should ultimately receive closer to $1,343.15.
[17] 550 claim forms claim a different number of Covered Solar Modules than SunPower’s data reflects, and the administrator will follow up to resolve those discrepancies.
[18] “Covered Solar Modules” means
SunPower photovoltaic modules with the factory integrated Subject Microinverters installed in them. The Covered Solar Modules were produced by SunPower from July 2015 to December 2016 and sold for residential use. The Covered Solar Modules were included in SunPower “Equinox” systems with panel model numbers SPR-E20-327-C-AC, SPRE19-320-C-AC, SPR-E18-305-C-AC, SPR-X22-360-C-AC, SPR-X21-350-BLK-C-AC, SPR-X21-345-C-AC, SPR-X21-335-C-AC, SPR-X21-335-BLKC-AC, and SPR-X20-327-BLK-C-AC.
“Subject Microinverter(s)” means “factory-integrated Generation 3.0 microinverters with serial numbers beginning with 4140515xxxx and 4140516xxxx. The Subject Microinverters were produced by a third-party manufacturer in 2015 and 2016 and installed in photovoltaic modules manufactured by SunPower from July 2015 to December 2016 and sold for residential use.”
[19] In the motion, Plaintiff indicates that she seeks a further response to SI 11, which she contends is the contact information for a representative sample of 400 nurses. However, Defendant correctly points out that Plaintiff seeks that contact information in SI 2. It appears that RPD 11, to which Plaintiff does not seek a further response, refers to contact information for the putative class members.
[20] Due to the volume of discovery requests at issue, the court will not quote the text of each request. Plaintiff provided the full text of each request and Defendant’s responses attached to the declaration of Alexei Kuchinsky in support of the motion.
[21] All further undesignated statutory references are to the Code of Civil Procedure.
[22] This is likely because Plaintiff did not include these requests in its separate statement. Nonetheless, Plaintiff’s notice of motion and memorandum of points and authorities both indicate that Plaintiff is seeking these documents.
[23] Plaintiff agreed to limit these requests to seek the following specific types of documents: “Break and Lunch Sign-Up Sheets” and “Staff Matrix.”
[24] Defendant submits two declarations with its opposition that it contends show it did not employ Plaintiff. But these declarations are conclusory and focus on West Valley’s employment of Plaintiff as a formal matter; they do not engage with the specifics of ChargePoint’s supervision and control over its contractors’ employees, among other circumstances relevant to an analysis of whether ChargePoint is a joint employer of these workers. The Court assigns little weight to these declarations, particularly because the merits of Plaintiff’s claims are not at issue right now.
[25] In the Court’s view, the older, unpublished federal authorities cited by ChargePoint in its opposition are contrary to Williams or otherwise unhelpful.
[26] While Williams addressed interrogatories specifically, the Court is unaware of any authority suggesting that the provision of additional, basic employment information pursuant to a Belaire-West notice would constitute an impermissible invasion of privacy. In the Court’s view, Plaintiff’s requests raise no more serious privacy concerns than a request for employee contact information, and these concerns are appropriately balanced against Plaintiff’s need for discovery by the Belaire-West process. (See Williams, supra, 3 Cal.5th at p. 557 [“the burden [is] on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion,” and against that showing the court “must weigh the [opposing party’s] countervailing interests”].)
................
................
In order to avoid copyright disputes, this page is only a partial summary.
To fulfill the demand for quickly locating and searching documents.
It is intelligent file search solution for home and business.
Related searches
- state of california municipal bonds
- state of california treasurer checks
- state of california check verification
- state of california education dept
- state of california gis data
- state of california real estate license
- state of california treasury department
- state of california unclaimed money
- state of california department of consumer affairs
- state of california department of education
- state of california department of aging
- state of california department of real estate