Preview
19CV347249
Santa Clara — Civil
R. Flemipg
Electronically Filed
Steven M. Tindall (SBN 187862) by Superior Court of CA,
smt@classlawgroup.com County of Santa Clara,
Jeffrey Kosbie (SBN 305424) on 4/3/2023 12:00 AM
jbk@classlawgroup.com Reviewed By: R. Fleming
GIBBS LAW GROUP LLP Case #19CV347249
1111 Broadway, Suite 2100
Oakland, California 94607 Envelope: 11594172
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
Alejandro Rosa (SNB: 340410)
rosa@ClarkHill.com
10 CLARK HILL LLP
555 S. Flower Street, 24" Floor
11 Los Angeles, California 90071
Telephone: (213) 891-9100
12 Fax: (213) 488-1178
Attorneys for Defendant
13 VARSITY TUTORS LLC
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15 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
16 COUNTY OF SANTA CLARA
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18
ALEXANDER CHARLES and HENRY Case No.: 19CV347249
MULAK, as individuals,
19
Hon. Theodore C. Zayner, Department 19
20 Plaintiffs,
JOINT CASE MANAGEMENT
21 vs. CONFERENCE STATEMENT
22 VARSITY TUTORS LLC, DATE: April 5, 2023
TIME: 2:30 PM
23 Defendant. DEPT: 19
24 Complaint Filed: May 1, 2019
FAC: May 30, 2019
25 Trial Date: None Set
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
Pursuant to the December 12, 2022 Notice of Further Case Management Conference and this
Court’s Complex Civil Guidelines, Plaintiff Alexander Charles (‘Plaintiff’) and Defendant Varsity Tutors
LLC (“Varsity Tutors” or “Defendant”) (collectively, “the Parties”) submit this Joint Statement in advance
of the Case Management Conference scheduled for April 5, 2023, at 2:30 p.m.
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.
Plaintiff alleges that Varsity Tutors compensates its tutors for time spent during tutoring sessions,
but not for time spent traveling to and from tutoring sessions, preparing for tutoring sessions,
10 communicating with students or their parents, or scheduling and bookkeeping related to the tutoring
ll sessions. Plaintiff alleges further that Varsity Tutors’ tutors are not reimbursed for gas or expenses
12 incurred in the performance of their duties, are not paid overtime, are not provided with the wage
13 statements required under California law, and are not compensated when they are unable to take meal
14 breaks. In addition, Plaintiff alleges that under the ABC test for misclassification established in Dynamex
15 Operations W. v. Sup.Ct. (2018), 4 Cal.Sth 903, Varsity Tutors misclassified its tutors as independent
16 contractors. Plaintiff alleges further that Varsity Tutors’ compensation practices violate the California
17 Labor Code, and Plaintiff and other tutors are, as a result, entitled to civil penalties under PAGA for each
18 Labor Code violation. Plaintiff's First Amended Complaint (FAC) alleges a single representative claim
19 for civil penalties under the PAGA.! Plaintiff's FAC does not include any individual labor code claims
20 and does not seek damages. See Kim v. Reins Int’l Cal., Inc. (2020) 9 Cal.5th 73, 81 (distinguishing civil
21 penalties under the PAGA from statutory damages).
22 Varsity Tutors contends that, among other things, it operates an online live learning platform that
23 independent contracted tutors, instructors, and other experts utilize to connect with and/or maintain
24 relationships with the customers/clients with whom they choose to engage through the platform.
25
26 ' As originally pleaded, the FAC included a Declaratory Relief Claim. This Court granted Defendant’s
Motion for Judgment on the Pleadings as to this claim, noting that “Defendant’s counsel agrees that the
27 [Independent Contractor] Agreement does not preclude Plaintiffs from asserting a PAGA cause of action
in this court.”
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
Defendant contends that it properly classified Plaintiff and the individuals he seeks to represent (who
utilized Defendant’s online platform to connect with tutoring customers/clients) as independent
contractors. Defendant further contends that the independent contracted tutors had complete discretion to
decide whether or not to provide services to potential clients through Defendant’s online platform; that
Defendant exercised no control over the timing and/or substantive content of Plaintiff's tutoring sessions;
and that these individuals were free to provide tutoring to customers/students whom they secured outside
of Defendant’s online platform. Indeed, the California Unemployment Insurance Appeals Board issued.
seven (7) separate decisions holding that Defendant properly classified specific independent contractors,
as well as two (2) single-claimant claims that were dismissed by the Employment Development
10 Department. As a result, in June of 2018, the Employment Development Department agreed to treat the
ll individuals who utilized Defendant’s online platform for a three (3) year period from July 1, 2013, to June
12 30, 2016, including Plaintiff and likely representatives being sought by Plaintiff, as independent
13 contractors. Put simply, two government agencies have previously determined that Defendant properly
14 classified the individuals at issue as independent contractors.
15 Il Procedural History Since Previous CMC/Discovery
16 Since the previous case management conference on December 7, 2022, the Parties met and
17 conferred regarding (1) Plaintiff's responses to Defendant’s Special Interrogatories (Set Two); (2)
18 Plaintiff's responses to portions of Defendant’s Request for Production of Documents (Set One), which
19 were tied to/dependent on Plaintiff's responses to Defendant’s Special Interrogatories (Set Two); (3)
20 Plaintiff's Responses to Form Interrogatories: General; and (4) Defendant’s responses to Plaintiff's
21 Requests for Production of Documents (Set One). The Parties were not able to come to an agreement on
22 all issues with respect to Plaintiff's discovery responses and, on March 24, 2023, Defendant requested an
23 IDC and an IDC is currently scheduled to take place on April 3, 2023. With respect to Defendant’s
24 responses to Plaintiff's Request for Production (Set One), Defendant produced its Third Supplemental
25 Responses to Plaintiff's Request for Production of Documents on March 23, 2023, and has produced
26 batches of documents on February 7, March 9, March 16, and March 22, 2023. Plaintiff is waiting for a
27 further response from Defendant as to outstanding discovery issues. Plaintiff expects that the Parties will
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
be able to fully resolve these issues and will only seek judicial intervention if the Parties are ultimately
unable to do so.
Defendant’s Statement
The Parties initially agreed to take Plaintiff's deposition on March 22, 2023, based on Plaintiff
counsel’s representations that all responsive documents would be produced in advance of this scheduled
date. However, this did not occur. Specifically, Plaintiff's counsel initially represented, via email
correspondence, that supplemental responses to Defendant’s Request for Production of Documents
(including producing additional responsive documents) would be forthcoming on February 24, 2023; then
represented, via email, that they would be forthcoming on either February 28, 2023, or March 1, 2023;
10 then represented, via email, that they would be forthcoming on March 8, 2023; then represented vial
ll telephone conference and via written correspondence, that they would be forthcoming on March 17, 2023;
12 then represented that via email that, due to technical difficulties, they would be forthcoming during the
13 beginning of the week of March 21, 2023 (even though Plaintiff's deposition was scheduled for
14 March 22, 2023); then represented via email that, due to continued technical difficulties, that they would
15 be forthcoming by close of business on March 22, 2023 (despite Plaintiff's deposition being scheduled for
16 March 22, 2023); and most recently (after the parties agreed to continue Plaintiffs deposition date to
17 April 17, 2023), represented via email that, although technical difficulties had been resolved, the volume
18 of documents to be produced “may be greater than . . . originally anticipated” and, therefore, documents
19 would be forthcoming during the week of March 27, 2023. As of the date of this filing, Plaintiff has not
20 provided his supplemental document production.
21 With respect to Plaintiff's planned deposition of Plaintiff's Person Most Knowledgeable (“PMK”),
22 Defendant has requested on multiple occasions over the last two and half months that Plaintiff provide a
23 detailed list of actual topics so that Defendant can determine both which individual(s) need to be produced
24 and these individual(s) availability for a PMK deposition. On February 8, 2023, Plaintiff counsel
25 represented that such a detailed list would be forthcoming “soon” and, on March 8, 2023, also stated that
26 the detailed list would be forthcoming. However, Plaintiff counsel has not provided this promised list.
27 HTf
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
Plaintiff’s Statement
Despite his position that Defendant’s requests are burdensome and barely (if at all) relevant,
Plaintiff has done a thorough and repeated search for all responsive documents. Plaintiff's
communications regarding his expected completion of discovery were made in good faith and in the
context of ongoing exchanges between the Parties in an effort to address objections and issues raised by
both sides. Plaintiff has requested potential dates for a PMK deposition and has provided a draft list of
PMK topics to assist Defendant in identifying witness(es). Defendant has so far refused to provide
potential dates, insisting that Plaintiff provide a more detailed list of topics. Although the draft list he has
provided to Defendant is sufficient, Plaintiff will serve his PMK deposition notice before the CMC.
10 Til. Litigation and Discovery Plan
ll Defendant’s Statement
12 In light of the above discovery delays and the corresponding need to delay Plaintiffs deposition,
13 as well as a trial date not having been set, Defendant requested that Plaintiff agree to adjust the Parties’
14 previously stipulated briefing schedule, hearing schedule, and related deadlines regarding cross-motions
15 for summary judgment.” To date, Plaintiff has not responded substantively to Defendant’s request. With
16 the foregoing in mind, Defendant proposes the revised schedule below:
17 Defendant’s Proposal
18 Parties to disclose experts to be relied upon in Summary Judgment Motions (including
production of any declarations or reports to be relied upon) by July 28, 2023
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Parties shall file Cross-Motions for Summary Judgement by August 14, 2023
20 Parties shall file opposition briefs by September 25, 2023
Parties shall file reply briefs by October 16, 2023
21 The Hearing on Cross-Motions for Summary Judgment shall be on October 30, 2023 or a later
date that comports with the Court’s schedule.
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It remains Defendant’s position that setting a trial date at this time would be premature, as was the
24
situation during the last CMC where the Court set the summary judgment briefing schedule that the
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Parties are now seeking to modify and extend due to outstanding discovery issues. As was further
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27 ? Judge Lucas signed the Parties’ Stipulation and Order Setting Briefing and Hearing Schedule for Cross-
Motions on December 23, 2022.
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
noted during the last CMC, if Defendant’s summary judgment motion is granted, then the resulting
order will dispose of the entire action including Plaintiff's representative claims. Further, if
Defendant’s motion for summary judgment is denied, then Defendant plans to file a motion challenging
the manageability of this PAGA action. Defendant submits that addressing cross-motions for summary
judgment prior to addressing motions regarding PAGA manageability would preserve both the parties’
and the court’s resources. Further, Defendant submits that the Parties will need to agree to briefing
schedule for Defendant’s planned manageability motion and/or some type of bifurcation. Additionally,
as detailed above, setting a trial date would be premature given that getting to the point where both
Parties are in a position to file their planned cross-motions for summary judgment has taken longer than
10 anticipated due to ongoing issues with written discovery. Finally, Plaintiffs proposed trial date and
ll pre-trial deadline does not comport with the court’s statement at the prior CMC that, even if a trial date
12 were to be set, it would not be set prior to 2024.
13 Plaintiff's Statement
14 During the December 7, 2022 Case Management Conference, Defendant took the position that
15 July 2023 was too soon for a hearing on cross-motions on summary judgment because of the amount of
16 discovery that remained. Plaintiff replied that the Parties had only identified a small amount of discovery
17 to be completed, including a deposition of Plaintiff, a PMK deposition, and completing document
18 productions. In addition, during the CMC, Plaintiff raised the potential applicability of the five-year
19 deadline to bring a case to trial, since this case was originally filed on May 1, 2019.> This Court adopted
20 Plaintiff's proposed schedule for the cross-motions on summary judgment, including Plaintiff's proposed
21 briefing schedule. Moreover, this Court instructed the Parties that the Court would be ready to set a trial
22 date at the April 2023 CMC, and this Court agreed that the Parties remained on track to schedule trial
23 well-ahead of the five-year deadline.
24 Nothing has changed since the December 7, 2022 Case Management Conference. Defendant has
25 not identified any other discovery that it intends to complete, except for Plaintiff's deposition, which is
26 scheduled. At its core, this case is about Defendant’s policies and practices with respect to all tutors—
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3 Plaintiff believes this deadline is extended by six months pursuant to Emergency Rule 10.
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
information over which Defendant has complete control—and the case does not involve any individual
labor code claims or individual damages. Aside from its bald assertion of discovery delays, Defendant
has provided no basis for its proposal to continue the case schedule by three months or for its continued
insistence that it is premature to schedule a trial* (Plaintiff notes that this Court previously stated that it
expected to set a trial date at the April CMC, even though it would not have yet seen, much less decided,
the cross-motions on summary judgment).
It remains Plaintiff's position that this case should be set for trial, and there is no compelling reason
not to do so, especially given that this case was filed in May 2019, nearly four years ago. The central
issue at trial is whether Defendant misclassified tutors—which is the same for all tutors and presents no
10 manageability issues. Any motion to challenge the manageability of the PAGA action can be handled at
ll any time in this litigation—including between the Court’s order on summary judgment and trial, and
12 Defendant may obtain the discovery it needs regarding both summary judgment and manageability prior
13 to the discovery cutoff proposed by Plaintiff. Plaintiff proposes the following schedule for additional
14 dates leading up to trial:
15 Plaintiff's Proposal
16 July 26, 2023: Fact discovery cutoff, last day to disclose expert witnesses
17 August 16, 2023: Hearing on Motion to Strike for Lack of Manageability
18 September 20, 2023: Expert discovery cutoff
October 9, 2023: File final Pre-Trial Conference documents, including joint statement of the cag
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witness list, exhibit list, list of controverted issues, motions in limine, proposed voir dire questio
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statement of compliance with local rules, and proposed jury instructions.
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October 23, 2023: Pre-Trial Conference
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November 6, 2023: Frist day of trial; Plaintiff expects to require four court days to present his ca}
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at trial. Assuming Defendant requires a similar amount of time, Plaintiff anticipates trial lastit]
24 approximately eight court days.
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26 + In his March 16, 2023 letter to Defendant, Plaintiff responded to Defendant’s request to adjust the briefing
schedule, stating that “we are open to discussing any needed modifications to the schedule should the
27 Parties be unable to resolve any open discovery issues with sufficient time for filing motions on the current
schedule” but that “we don’t [presently] think it will be necessary to move the schedule.”
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
Iv. Other Topic:
The Parties will be available at the Case Management Conference to address any questions the
Court may have.
Dated: March 31, 2023 GIBBS LAW GROUP LLP
By:
Steven M. Tindall
Jeffrey Kosbie
Attorneys for Plaintiff
ALEXANDER CHARLES
Dated: March 31, 2023 CLARK HILL LLP
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py ee
Rafael Nendel-Flores, Esq.
12 Guillermo Tello, Esq.
Alejandro Rosa, Esq.
13 Attorneys for Defendant
VARSITY TUTORS LLC
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
PROOF OF SERVICE
STATE OF CALIFORNIA )
3 ) ss.
COUNTY OF LOS ANGELES )
I declare that:
Tam employed in the County of Los Angeles, State of California. I am over the age of 18 years
and not a party to the within action; my business address is 555 South Flower Street, 24° Floor, Los
Angeles, California 90071.
On March 31, 2023, I served the foregoing document(s) described as: JOINT CASE
MANAGEMENT CONFERENCE STATEMENT on the interested parties in this action by placing the
true copies thereof enclosed in a sealed envelope(s) addressed as follows:
10 Steven Tindall, Esq. Attorneys for Plaintiffs
Jeffrey Kosbie, Esq. ALEXANDER CHARLES and
11 GIBBS LAW GROUP LLP HENRY MULAK
1111 Broadway, Suite 2100
12 Oakland, CA 94607
Telephone: (510) 350-9700
13 Facsimile: (510) 350-9701
Email :smt@classlawgroup.com
14 jbk@classlawgroup.com
15
[xX] BY ELECTRONIC TRANSMISSION: By emailing a true and correct copy through Clark Hill LLP’s
16 electronic mail system from DVo@clarkhill.com to the email addresses as indicated on the above service
list.
17
18 [1 BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly
maintained by the overnight service carrier, or delivered such document(s) to a courier or driver
19 authorized by the overnight service carrier to receive documents, in an envelope or package
designated by the overnight service carrier with delivery fees paid or provided for, addressed to the
20 person(s) served hereunder. (C.C.P. § 1013(d)(e)).
21
[xX] (STATE) I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
22
23 Executed on March 31, 2023, at Los Angeles, California.
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Diane Vo
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PROOF OF SERVICE
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19CV347249 Santa Clara — Civil R. Flemipg Electronically Filed Steven M. Tindall (SBN 187862) by Superior Court of CA, smt@classlawgroup.com County of Santa Clara, Jeffrey Kosbie (SBN 305424) on 4/3/2023 12:00 AM jbk@classlawgroup.com Reviewed By: R. Fleming GIBBS LAW GROUP LLP Case #19CV347249 1111 Broadway, Suite 2100 Oakland, California 94607 Envelope: 11594172 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 Alejandro Rosa (SNB: 340410) rosa@ClarkHill.com 10 CLARK HILL LLP 555 S. Flower Street, 24" Floor 11 Los Angeles, California 90071 Telephone: (213) 891-9100 12 Fax: (213) 488-1178 Attorneys for Defendant 13 VARSITY TUTORS LLC 14 15 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 16 COUNTY OF SANTA CLARA 17 18 ALEXANDER CHARLES and HENRY Case No.: 19CV347249 MULAK, as individuals, 19 Hon. Theodore C. Zayner, Department 19 20 Plaintiffs, JOINT CASE MANAGEMENT 21 vs. CONFERENCE STATEMENT 22 VARSITY TUTORS LLC, DATE: April 5, 2023 TIME: 2:30 PM 23 Defendant. DEPT: 19 24 Complaint Filed: May 1, 2019 FAC: May 30, 2019 25 Trial Date: None Set 26 27 28 JOINT CASE MANAGEMENT CONFERENCE STATEMENT Pursuant to the December 12, 2022 Notice of Further Case Management Conference and this Court’s Complex Civil Guidelines, Plaintiff Alexander Charles (‘Plaintiff’) and Defendant Varsity Tutors LLC (“Varsity Tutors” or “Defendant”) (collectively, “the Parties”) submit this Joint Statement in advance of the Case Management Conference scheduled for April 5, 2023, at 2:30 p.m. 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. Plaintiff alleges that Varsity Tutors compensates its tutors for time spent during tutoring sessions, but not for time spent traveling to and from tutoring sessions, preparing for tutoring sessions, 10 communicating with students or their parents, or scheduling and bookkeeping related to the tutoring ll sessions. Plaintiff alleges further that Varsity Tutors’ tutors are not reimbursed for gas or expenses 12 incurred in the performance of their duties, are not paid overtime, are not provided with the wage 13 statements required under California law, and are not compensated when they are unable to take meal 14 breaks. In addition, Plaintiff alleges that under the ABC test for misclassification established in Dynamex 15 Operations W. v. Sup.Ct. (2018), 4 Cal.Sth 903, Varsity Tutors misclassified its tutors as independent 16 contractors. Plaintiff alleges further that Varsity Tutors’ compensation practices violate the California 17 Labor Code, and Plaintiff and other tutors are, as a result, entitled to civil penalties under PAGA for each 18 Labor Code violation. Plaintiff's First Amended Complaint (FAC) alleges a single representative claim 19 for civil penalties under the PAGA.! Plaintiff's FAC does not include any individual labor code claims 20 and does not seek damages. See Kim v. Reins Int’l Cal., Inc. (2020) 9 Cal.5th 73, 81 (distinguishing civil 21 penalties under the PAGA from statutory damages). 22 Varsity Tutors contends that, among other things, it operates an online live learning platform that 23 independent contracted tutors, instructors, and other experts utilize to connect with and/or maintain 24 relationships with the customers/clients with whom they choose to engage through the platform. 25 26 ' As originally pleaded, the FAC included a Declaratory Relief Claim. This Court granted Defendant’s Motion for Judgment on the Pleadings as to this claim, noting that “Defendant’s counsel agrees that the 27 [Independent Contractor] Agreement does not preclude Plaintiffs from asserting a PAGA cause of action in this court.” 28 1 JOINT CASE MANAGEMENT CONFERENCE STATEMENT Defendant contends that it properly classified Plaintiff and the individuals he seeks to represent (who utilized Defendant’s online platform to connect with tutoring customers/clients) as independent contractors. Defendant further contends that the independent contracted tutors had complete discretion to decide whether or not to provide services to potential clients through Defendant’s online platform; that Defendant exercised no control over the timing and/or substantive content of Plaintiff's tutoring sessions; and that these individuals were free to provide tutoring to customers/students whom they secured outside of Defendant’s online platform. Indeed, the California Unemployment Insurance Appeals Board issued. seven (7) separate decisions holding that Defendant properly classified specific independent contractors, as well as two (2) single-claimant claims that were dismissed by the Employment Development 10 Department. As a result, in June of 2018, the Employment Development Department agreed to treat the ll individuals who utilized Defendant’s online platform for a three (3) year period from July 1, 2013, to June 12 30, 2016, including Plaintiff and likely representatives being sought by Plaintiff, as independent 13 contractors. Put simply, two government agencies have previously determined that Defendant properly 14 classified the individuals at issue as independent contractors. 15 Il Procedural History Since Previous CMC/Discovery 16 Since the previous case management conference on December 7, 2022, the Parties met and 17 conferred regarding (1) Plaintiff's responses to Defendant’s Special Interrogatories (Set Two); (2) 18 Plaintiff's responses to portions of Defendant’s Request for Production of Documents (Set One), which 19 were tied to/dependent on Plaintiff's responses to Defendant’s Special Interrogatories (Set Two); (3) 20 Plaintiff's Responses to Form Interrogatories: General; and (4) Defendant’s responses to Plaintiff's 21 Requests for Production of Documents (Set One). The Parties were not able to come to an agreement on 22 all issues with respect to Plaintiff's discovery responses and, on March 24, 2023, Defendant requested an 23 IDC and an IDC is currently scheduled to take place on April 3, 2023. With respect to Defendant’s 24 responses to Plaintiff's Request for Production (Set One), Defendant produced its Third Supplemental 25 Responses to Plaintiff's Request for Production of Documents on March 23, 2023, and has produced 26 batches of documents on February 7, March 9, March 16, and March 22, 2023. Plaintiff is waiting for a 27 further response from Defendant as to outstanding discovery issues. Plaintiff expects that the Parties will 28 2 JOINT CASE MANAGEMENT CONFERENCE STATEMENT be able to fully resolve these issues and will only seek judicial intervention if the Parties are ultimately unable to do so. Defendant’s Statement The Parties initially agreed to take Plaintiff's deposition on March 22, 2023, based on Plaintiff counsel’s representations that all responsive documents would be produced in advance of this scheduled date. However, this did not occur. Specifically, Plaintiff's counsel initially represented, via email correspondence, that supplemental responses to Defendant’s Request for Production of Documents (including producing additional responsive documents) would be forthcoming on February 24, 2023; then represented, via email, that they would be forthcoming on either February 28, 2023, or March 1, 2023; 10 then represented, via email, that they would be forthcoming on March 8, 2023; then represented vial ll telephone conference and via written correspondence, that they would be forthcoming on March 17, 2023; 12 then represented that via email that, due to technical difficulties, they would be forthcoming during the 13 beginning of the week of March 21, 2023 (even though Plaintiff's deposition was scheduled for 14 March 22, 2023); then represented via email that, due to continued technical difficulties, that they would 15 be forthcoming by close of business on March 22, 2023 (despite Plaintiff's deposition being scheduled for 16 March 22, 2023); and most recently (after the parties agreed to continue Plaintiffs deposition date to 17 April 17, 2023), represented via email that, although technical difficulties had been resolved, the volume 18 of documents to be produced “may be greater than . . . originally anticipated” and, therefore, documents 19 would be forthcoming during the week of March 27, 2023. As of the date of this filing, Plaintiff has not 20 provided his supplemental document production. 21 With respect to Plaintiff's planned deposition of Plaintiff's Person Most Knowledgeable (“PMK”), 22 Defendant has requested on multiple occasions over the last two and half months that Plaintiff provide a 23 detailed list of actual topics so that Defendant can determine both which individual(s) need to be produced 24 and these individual(s) availability for a PMK deposition. On February 8, 2023, Plaintiff counsel 25 represented that such a detailed list would be forthcoming “soon” and, on March 8, 2023, also stated that 26 the detailed list would be forthcoming. However, Plaintiff counsel has not provided this promised list. 27 HTf 28 3 JOINT CASE MANAGEMENT CONFERENCE STATEMENT Plaintiff’s Statement Despite his position that Defendant’s requests are burdensome and barely (if at all) relevant, Plaintiff has done a thorough and repeated search for all responsive documents. Plaintiff's communications regarding his expected completion of discovery were made in good faith and in the context of ongoing exchanges between the Parties in an effort to address objections and issues raised by both sides. Plaintiff has requested potential dates for a PMK deposition and has provided a draft list of PMK topics to assist Defendant in identifying witness(es). Defendant has so far refused to provide potential dates, insisting that Plaintiff provide a more detailed list of topics. Although the draft list he has provided to Defendant is sufficient, Plaintiff will serve his PMK deposition notice before the CMC. 10 Til. Litigation and Discovery Plan ll Defendant’s Statement 12 In light of the above discovery delays and the corresponding need to delay Plaintiffs deposition, 13 as well as a trial date not having been set, Defendant requested that Plaintiff agree to adjust the Parties’ 14 previously stipulated briefing schedule, hearing schedule, and related deadlines regarding cross-motions 15 for summary judgment.” To date, Plaintiff has not responded substantively to Defendant’s request. With 16 the foregoing in mind, Defendant proposes the revised schedule below: 17 Defendant’s Proposal 18 Parties to disclose experts to be relied upon in Summary Judgment Motions (including production of any declarations or reports to be relied upon) by July 28, 2023 19 Parties shall file Cross-Motions for Summary Judgement by August 14, 2023 20 Parties shall file opposition briefs by September 25, 2023 Parties shall file reply briefs by October 16, 2023 21 The Hearing on Cross-Motions for Summary Judgment shall be on October 30, 2023 or a later date that comports with the Court’s schedule. 22 23 It remains Defendant’s position that setting a trial date at this time would be premature, as was the 24 situation during the last CMC where the Court set the summary judgment briefing schedule that the 25 Parties are now seeking to modify and extend due to outstanding discovery issues. As was further 26 27 ? Judge Lucas signed the Parties’ Stipulation and Order Setting Briefing and Hearing Schedule for Cross- Motions on December 23, 2022. 28 4 JOINT CASE MANAGEMENT CONFERENCE STATEMENT noted during the last CMC, if Defendant’s summary judgment motion is granted, then the resulting order will dispose of the entire action including Plaintiff's representative claims. Further, if Defendant’s motion for summary judgment is denied, then Defendant plans to file a motion challenging the manageability of this PAGA action. Defendant submits that addressing cross-motions for summary judgment prior to addressing motions regarding PAGA manageability would preserve both the parties’ and the court’s resources. Further, Defendant submits that the Parties will need to agree to briefing schedule for Defendant’s planned manageability motion and/or some type of bifurcation. Additionally, as detailed above, setting a trial date would be premature given that getting to the point where both Parties are in a position to file their planned cross-motions for summary judgment has taken longer than 10 anticipated due to ongoing issues with written discovery. Finally, Plaintiffs proposed trial date and ll pre-trial deadline does not comport with the court’s statement at the prior CMC that, even if a trial date 12 were to be set, it would not be set prior to 2024. 13 Plaintiff's Statement 14 During the December 7, 2022 Case Management Conference, Defendant took the position that 15 July 2023 was too soon for a hearing on cross-motions on summary judgment because of the amount of 16 discovery that remained. Plaintiff replied that the Parties had only identified a small amount of discovery 17 to be completed, including a deposition of Plaintiff, a PMK deposition, and completing document 18 productions. In addition, during the CMC, Plaintiff raised the potential applicability of the five-year 19 deadline to bring a case to trial, since this case was originally filed on May 1, 2019.> This Court adopted 20 Plaintiff's proposed schedule for the cross-motions on summary judgment, including Plaintiff's proposed 21 briefing schedule. Moreover, this Court instructed the Parties that the Court would be ready to set a trial 22 date at the April 2023 CMC, and this Court agreed that the Parties remained on track to schedule trial 23 well-ahead of the five-year deadline. 24 Nothing has changed since the December 7, 2022 Case Management Conference. Defendant has 25 not identified any other discovery that it intends to complete, except for Plaintiff's deposition, which is 26 scheduled. At its core, this case is about Defendant’s policies and practices with respect to all tutors— 27 3 Plaintiff believes this deadline is extended by six months pursuant to Emergency Rule 10. 28 5 JOINT CASE MANAGEMENT CONFERENCE STATEMENT information over which Defendant has complete control—and the case does not involve any individual labor code claims or individual damages. Aside from its bald assertion of discovery delays, Defendant has provided no basis for its proposal to continue the case schedule by three months or for its continued insistence that it is premature to schedule a trial* (Plaintiff notes that this Court previously stated that it expected to set a trial date at the April CMC, even though it would not have yet seen, much less decided, the cross-motions on summary judgment). It remains Plaintiff's position that this case should be set for trial, and there is no compelling reason not to do so, especially given that this case was filed in May 2019, nearly four years ago. The central issue at trial is whether Defendant misclassified tutors—which is the same for all tutors and presents no 10 manageability issues. Any motion to challenge the manageability of the PAGA action can be handled at ll any time in this litigation—including between the Court’s order on summary judgment and trial, and 12 Defendant may obtain the discovery it needs regarding both summary judgment and manageability prior 13 to the discovery cutoff proposed by Plaintiff. Plaintiff proposes the following schedule for additional 14 dates leading up to trial: 15 Plaintiff's Proposal 16 July 26, 2023: Fact discovery cutoff, last day to disclose expert witnesses 17 August 16, 2023: Hearing on Motion to Strike for Lack of Manageability 18 September 20, 2023: Expert discovery cutoff October 9, 2023: File final Pre-Trial Conference documents, including joint statement of the cag 19 witness list, exhibit list, list of controverted issues, motions in limine, proposed voir dire questio 20 statement of compliance with local rules, and proposed jury instructions. 21 October 23, 2023: Pre-Trial Conference 22 November 6, 2023: Frist day of trial; Plaintiff expects to require four court days to present his ca} 23 at trial. Assuming Defendant requires a similar amount of time, Plaintiff anticipates trial lastit] 24 approximately eight court days. 25 26 + In his March 16, 2023 letter to Defendant, Plaintiff responded to Defendant’s request to adjust the briefing schedule, stating that “we are open to discussing any needed modifications to the schedule should the 27 Parties be unable to resolve any open discovery issues with sufficient time for filing motions on the current schedule” but that “we don’t [presently] think it will be necessary to move the schedule.” 28 6 JOINT CASE MANAGEMENT CONFERENCE STATEMENT Iv. Other Topic: The Parties will be available at the Case Management Conference to address any questions the Court may have. Dated: March 31, 2023 GIBBS LAW GROUP LLP By: Steven M. Tindall Jeffrey Kosbie Attorneys for Plaintiff ALEXANDER CHARLES Dated: March 31, 2023 CLARK HILL LLP 10 11 py ee Rafael Nendel-Flores, Esq. 12 Guillermo Tello, Esq. Alejandro Rosa, Esq. 13 Attorneys for Defendant VARSITY TUTORS LLC 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 JOINT CASE MANAGEMENT CONFERENCE STATEMENT PROOF OF SERVICE STATE OF CALIFORNIA ) 3 ) ss. COUNTY OF LOS ANGELES ) I declare that: Tam employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action; my business address is 555 South Flower Street, 24° Floor, Los Angeles, California 90071. On March 31, 2023, I served the foregoing document(s) described as: JOINT CASE MANAGEMENT CONFERENCE STATEMENT on the interested parties in this action by placing the true copies thereof enclosed in a sealed envelope(s) addressed as follows: 10 Steven Tindall, Esq. Attorneys for Plaintiffs Jeffrey Kosbie, Esq. ALEXANDER CHARLES and 11 GIBBS LAW GROUP LLP HENRY MULAK 1111 Broadway, Suite 2100 12 Oakland, CA 94607 Telephone: (510) 350-9700 13 Facsimile: (510) 350-9701 Email :smt@classlawgroup.com 14 jbk@classlawgroup.com 15 [xX] BY ELECTRONIC TRANSMISSION: By emailing a true and correct copy through Clark Hill LLP’s 16 electronic mail system from DVo@clarkhill.com to the email addresses as indicated on the above service list. 17 18 [1 BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly maintained by the overnight service carrier, or delivered such document(s) to a courier or driver 19 authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier with delivery fees paid or provided for, addressed to the 20 person(s) served hereunder. (C.C.P. § 1013(d)(e)). 21 [xX] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 22 23 Executed on March 31, 2023, at Los Angeles, California. 24 25 Diane Vo 26 27 28 1 PROOF OF SERVICE