Preview
19CV347249
Santa Clara — Civil
R. Flaming
Electronically Filed
Steven M. Tindall (SBN 187862) by Superior Court of CA,
smt@classlawgroup.com County of Santa Clara,
Jeffrey Kosbie (SBN 305424) on 11/4/2021 5:29 PM
jbk@classlawgroup.com
GIBBS LAW GROUP LLP Reviewed By: R. Fleming
505 14th Street, Suite 1110 Case #19CV347249
Oakland, California 94612 Envelope: 7608447
Telephone: (510) 350-9700
Fax: (510) 350-9701
Attorneys for Plaintiff
ALEXANDER CHARLES
Rafael G. Nendel-Flores (SBN 223358)
mendelflores@ClarkHill.com
Guillermo M. Tello (SBN 277896)
gtello@ClarkHill.com
CLARK HILL LLP
10 1055 West Seventh Street, Suite 2400
Los Angeles, California 90017
11 Telephone: (213) 891-9100
Fax: (213) 488-1178
12
13 Attorneys for Defendant
VARSITY TUTORS LLC
14
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
15
COUNTY OF SANTA CLARA
16
17 DOWNTOWN SUPERIOR COURT
18 ALEXANDER CHARLES, Case No. 19CV347249
19 Plaintiff, JOINT CASE MANAGEMENT CONFERENCE
20 STATEMENT
Vv.
21 Honorable Patricia Lucas
VARSITY TUTORS LLC
22 Case Management Conference:
23 Defendant, Date: November 10, 2021
Time: 2:30 p.m.
24 Department: 3
25
26
28
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
Pursuant to the July 29, 2021 Notice of Further Case Management Conference and this Court’s
Complex Civil Guidelines, Plaintiff Alexander Charles and Defendant Varsity Tutors LLC,
(collectively, “the Parties”) submit this Joint Statement in advance of the Case Management
Conference scheduled for November 10, 2021, at 2:30 p.m., in this department.
I Case Summary
This is a representative action for relief under the Private Attorneys’ General Act of 2004
(“PAGA”), Cal. Lab. Code §§ 2698-2699.5. The Parties are unaware of any pending related court case.
Defendant Varsity Tutors contends that, among other things, Defendant operates an online live
learning platform that independent contracted tutors, instructors, and other experts utilize to connect
10 with and/or maintain relationships with the customers/clients with whom they choose to engage
11 through the platform.
12 Plaintiff alleges that Varsity Tutors compensates tutors for time spent during tutoring sessions,
13 but not for time spent traveling to and from tutoring sessions, preparing for tutoring sessions,
14 communicating with students or their parents, or scheduling and bookkeeping related to the tutoring
15 sessions. Plaintiff alleges further that tutors are not reimbursed for gas or expenses incurred in the
16 performance of their duties, are not paid overtime, are not provided with the wage statements required
17 under California law, and are not compensated when they are unable to take meal breaks. In addition,
18 Plaintiff alleges that (a) Varsity Tutors misclassified tutors as independent contractors, (b) Varsity
19 Tutors’ compensation practices violate the California Labor Code, and (c) Plaintiff and other tutors are
20 entitled to civil penalties under PAGA for each Labor Code violation.
21 Defendant contends that it properly classified all independent contractors who utilized
22 Defendant’s online platform to connect with tutoring customers/clients. Defendant further contends:
23 that the independent contracted tutors had complete discretion to decide whether or not to provide
24 services to potential clients on Defendant’s online platform; that Defendant exercised no control over
25 the timing and/or substantive content of Plaintiff's tutoring sessions; and that these individuals were
26 free to provide tutoring to clients whom they secured outside of Defendant’s online platform. Indeed,
the California Unemployment Insurance Appeals Board issued seven (7) separate decisions holding that
28 Defendant properly classified specific independent contractors, as well as two (2) single-claimant
1
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
claims that were dismissed by the Employment Development Department. As a result, in June of 2018,
the Employment Development Department agreed to treat the individuals who utilized Defendant’s
online platform for a three (3) year period from July 1, 2013, to June 30, 2016, including Plaintiff and
likely representatives being sought by Plaintiff, as independent contractors. Put simply, two
government agencies have previously determined that Defendant properly classified the individuals at
issue as independent contractors.
Il. Procedural History Since Previous CMC and Alternative Dispute Resolution
Since the previous CMC, the Parties agreed to mediate the case before experienced employment
mediator Tripper Ortman. The Parties scheduled a mediation for June 27, 2022, which was the earliest
10 date that all counsel and the mediator were available. Plaintiff has requested to be notified by the
11 mediator if any earlier dates become available on his calendar. It is Defendant’s preference that the
12 mediation date not be advanced. Defendant’s decision-makers are based in Missouri; the mediation
13 will be conducted in person, if pandemic circumstances allow; and, as a result, it will be difficult for
14 Defendant to make travel arrangements on short-notice.
15 On October 15, 2021, Defendant-Appellant filed its opening briefin its appeal of this Court’s
16 February 18, 2021 Order granting monetary sanctions in favor of Plaintiff. Plaintiff-Respondent’s brief
17 is currently due on November 15, 2021.
18 Il. Discovery and ESI
19 Since the previous CMC, the Parties have discussed the parameters and scope for an informal
20 production of documents in preparation for mediation. Defendant is still in the process of reviewing
21 Plaintiffs informal/pre-mediation information request and will work with Plaintiff in a cooperative
22 manner. Further, Defendant intends to provide Plaintiff with an informal/pre-mediation information
23 request by the end of November 2021. The parties will work cooperatively to ensure that both sides
24 have sufficient pre-mediation information well in advance of the parties’ mediation.
25 In light of the Parties’ discussions regarding informal production of documents, Plaintiff has
26 agreed to postpone for now the meet-and-confer process regarding Plaintiff's outstanding formal
discovery requests. This includes the dispute described in the previous CMC statement regarding
28 whether Defendant has any basis to refuse to produce tutor email addresses. Should the Parties be
2
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
unable to agree on the scope of informal document production, Plaintiff will meet and confer regarding
the outstanding formal discovery requests, including the tutor email address issue. The Parties will
request an Informal Discovery Conference before this Court if they are unable to resolve any disputes
as to Plaintiffs discovery requests.
IV. Other Topic:
The Parties will be available at the Case Management Conference to address any questions the
Court may have.
DATED: November 4 , 2021 Respectfully submitted,
10 GIBBS LAW GROUP LLP
11 By:
Steven M. Tindall
12
Jeffrey Kosbie
13 505 14th Street, Suite 1110
Oakland, California 94612
14 Telephone: (510) 350-9700
Fax: (510) 350-9701
15
16 Counsel for Plaintiff
17
CLARK HILL LLP
18
DATED: November 4, 2021 By: ae ee
20 Rafael G. Nendel-Flores
Guillermo M. Tello
21 1055 West Seventh Street, Suite 2400
Los Angeles, California 90017
22
Telephone: (213) 891-9100
23 Fax: (213) 488-1178
24 Counsel for Defendant Varsity Tutors LLC
25
26
7
28
3
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
PROOF OF SERVICE
lam employed in the county of Alameda, State of California. I am over the age of 18 and not a
party to the within action. My business address is: 505 14th Street, Suite 1110, Oakland, California
94612.
On November 4, 2021, I served a copy of the document(s) described as:
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
on the following interested party(ies) in this action:
Rafael G. Nendel-Flores
Diane Vo
Guillermo M. Tello
Yesi Lagunas
10 CLARK HILL PLC
11 1055 West Seventh Street, Suite 2400
Los Angeles, CA 90017
12 Email: mendelflores@ClarkHill.com
Email: dvo@ClarkHill.com
13 Email: gtello@ClarkHill.com
14 Email: ylagunas@ClarkHill.com
15 Attorneys
for Varsity Tutors LLC
16
17 C] BY MAIL: by placing the document(s) listed above for collection and mailing following
the firm’s ordinary business practice in a sealed envelope with postage thereon fully
18
prepaid for deposit in the United States mail at Oakland, California addressed as set forth
19 above.
20 [xX] BY EMAIL: by electronically transmitting PDF versions of above listed documents to the|
21 email addresses set forth above on this date.
22 I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
Executed on November 4, 2021, at Oakland, California.
24
25
26 Honeyleen Bohol
27
28
4
PROOF OF SERVICE
Preview
19CV347249 Santa Clara — Civil R. Flaming Electronically Filed Steven M. Tindall (SBN 187862) by Superior Court of CA, smt@classlawgroup.com County of Santa Clara, Jeffrey Kosbie (SBN 305424) on 11/4/2021 5:29 PM jbk@classlawgroup.com GIBBS LAW GROUP LLP Reviewed By: R. Fleming 505 14th Street, Suite 1110 Case #19CV347249 Oakland, California 94612 Envelope: 7608447 Telephone: (510) 350-9700 Fax: (510) 350-9701 Attorneys for Plaintiff ALEXANDER CHARLES Rafael G. Nendel-Flores (SBN 223358) mendelflores@ClarkHill.com Guillermo M. Tello (SBN 277896) gtello@ClarkHill.com CLARK HILL LLP 10 1055 West Seventh Street, Suite 2400 Los Angeles, California 90017 11 Telephone: (213) 891-9100 Fax: (213) 488-1178 12 13 Attorneys for Defendant VARSITY TUTORS LLC 14 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 15 COUNTY OF SANTA CLARA 16 17 DOWNTOWN SUPERIOR COURT 18 ALEXANDER CHARLES, Case No. 19CV347249 19 Plaintiff, JOINT CASE MANAGEMENT CONFERENCE 20 STATEMENT Vv. 21 Honorable Patricia Lucas VARSITY TUTORS LLC 22 Case Management Conference: 23 Defendant, Date: November 10, 2021 Time: 2:30 p.m. 24 Department: 3 25 26 28 JOINT CASE MANAGEMENT CONFERENCE STATEMENT Pursuant to the July 29, 2021 Notice of Further Case Management Conference and this Court’s Complex Civil Guidelines, Plaintiff Alexander Charles and Defendant Varsity Tutors LLC, (collectively, “the Parties”) submit this Joint Statement in advance of the Case Management Conference scheduled for November 10, 2021, at 2:30 p.m., in this department. I Case Summary This is a representative action for relief under the Private Attorneys’ General Act of 2004 (“PAGA”), Cal. Lab. Code §§ 2698-2699.5. The Parties are unaware of any pending related court case. Defendant Varsity Tutors contends that, among other things, Defendant operates an online live learning platform that independent contracted tutors, instructors, and other experts utilize to connect 10 with and/or maintain relationships with the customers/clients with whom they choose to engage 11 through the platform. 12 Plaintiff alleges that Varsity Tutors compensates tutors for time spent during tutoring sessions, 13 but not for time spent traveling to and from tutoring sessions, preparing for tutoring sessions, 14 communicating with students or their parents, or scheduling and bookkeeping related to the tutoring 15 sessions. Plaintiff alleges further that tutors are not reimbursed for gas or expenses incurred in the 16 performance of their duties, are not paid overtime, are not provided with the wage statements required 17 under California law, and are not compensated when they are unable to take meal breaks. In addition, 18 Plaintiff alleges that (a) Varsity Tutors misclassified tutors as independent contractors, (b) Varsity 19 Tutors’ compensation practices violate the California Labor Code, and (c) Plaintiff and other tutors are 20 entitled to civil penalties under PAGA for each Labor Code violation. 21 Defendant contends that it properly classified all independent contractors who utilized 22 Defendant’s online platform to connect with tutoring customers/clients. Defendant further contends: 23 that the independent contracted tutors had complete discretion to decide whether or not to provide 24 services to potential clients on Defendant’s online platform; that Defendant exercised no control over 25 the timing and/or substantive content of Plaintiff's tutoring sessions; and that these individuals were 26 free to provide tutoring to clients whom they secured outside of Defendant’s online platform. Indeed, the California Unemployment Insurance Appeals Board issued seven (7) separate decisions holding that 28 Defendant properly classified specific independent contractors, as well as two (2) single-claimant 1 JOINT CASE MANAGEMENT CONFERENCE STATEMENT claims that were dismissed by the Employment Development Department. As a result, in June of 2018, the Employment Development Department agreed to treat the individuals who utilized Defendant’s online platform for a three (3) year period from July 1, 2013, to June 30, 2016, including Plaintiff and likely representatives being sought by Plaintiff, as independent contractors. Put simply, two government agencies have previously determined that Defendant properly classified the individuals at issue as independent contractors. Il. Procedural History Since Previous CMC and Alternative Dispute Resolution Since the previous CMC, the Parties agreed to mediate the case before experienced employment mediator Tripper Ortman. The Parties scheduled a mediation for June 27, 2022, which was the earliest 10 date that all counsel and the mediator were available. Plaintiff has requested to be notified by the 11 mediator if any earlier dates become available on his calendar. It is Defendant’s preference that the 12 mediation date not be advanced. Defendant’s decision-makers are based in Missouri; the mediation 13 will be conducted in person, if pandemic circumstances allow; and, as a result, it will be difficult for 14 Defendant to make travel arrangements on short-notice. 15 On October 15, 2021, Defendant-Appellant filed its opening briefin its appeal of this Court’s 16 February 18, 2021 Order granting monetary sanctions in favor of Plaintiff. Plaintiff-Respondent’s brief 17 is currently due on November 15, 2021. 18 Il. Discovery and ESI 19 Since the previous CMC, the Parties have discussed the parameters and scope for an informal 20 production of documents in preparation for mediation. Defendant is still in the process of reviewing 21 Plaintiffs informal/pre-mediation information request and will work with Plaintiff in a cooperative 22 manner. Further, Defendant intends to provide Plaintiff with an informal/pre-mediation information 23 request by the end of November 2021. The parties will work cooperatively to ensure that both sides 24 have sufficient pre-mediation information well in advance of the parties’ mediation. 25 In light of the Parties’ discussions regarding informal production of documents, Plaintiff has 26 agreed to postpone for now the meet-and-confer process regarding Plaintiff's outstanding formal discovery requests. This includes the dispute described in the previous CMC statement regarding 28 whether Defendant has any basis to refuse to produce tutor email addresses. Should the Parties be 2 JOINT CASE MANAGEMENT CONFERENCE STATEMENT unable to agree on the scope of informal document production, Plaintiff will meet and confer regarding the outstanding formal discovery requests, including the tutor email address issue. The Parties will request an Informal Discovery Conference before this Court if they are unable to resolve any disputes as to Plaintiffs discovery requests. IV. Other Topic: The Parties will be available at the Case Management Conference to address any questions the Court may have. DATED: November 4 , 2021 Respectfully submitted, 10 GIBBS LAW GROUP LLP 11 By: Steven M. Tindall 12 Jeffrey Kosbie 13 505 14th Street, Suite 1110 Oakland, California 94612 14 Telephone: (510) 350-9700 Fax: (510) 350-9701 15 16 Counsel for Plaintiff 17 CLARK HILL LLP 18 DATED: November 4, 2021 By: ae ee 20 Rafael G. Nendel-Flores Guillermo M. Tello 21 1055 West Seventh Street, Suite 2400 Los Angeles, California 90017 22 Telephone: (213) 891-9100 23 Fax: (213) 488-1178 24 Counsel for Defendant Varsity Tutors LLC 25 26 7 28 3 JOINT CASE MANAGEMENT CONFERENCE STATEMENT PROOF OF SERVICE lam employed in the county of Alameda, State of California. I am over the age of 18 and not a party to the within action. My business address is: 505 14th Street, Suite 1110, Oakland, California 94612. On November 4, 2021, I served a copy of the document(s) described as: JOINT CASE MANAGEMENT CONFERENCE STATEMENT on the following interested party(ies) in this action: Rafael G. Nendel-Flores Diane Vo Guillermo M. Tello Yesi Lagunas 10 CLARK HILL PLC 11 1055 West Seventh Street, Suite 2400 Los Angeles, CA 90017 12 Email: mendelflores@ClarkHill.com Email: dvo@ClarkHill.com 13 Email: gtello@ClarkHill.com 14 Email: ylagunas@ClarkHill.com 15 Attorneys for Varsity Tutors LLC 16 17 C] BY MAIL: by placing the document(s) listed above for collection and mailing following the firm’s ordinary business practice in a sealed envelope with postage thereon fully 18 prepaid for deposit in the United States mail at Oakland, California addressed as set forth 19 above. 20 [xX] BY EMAIL: by electronically transmitting PDF versions of above listed documents to the| 21 email addresses set forth above on this date. 22 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 4, 2021, at Oakland, California. 24 25 26 Honeyleen Bohol 27 28 4 PROOF OF SERVICE