Not Motion in John Boudreau vs. Primeritus Financial Services Inc| Trellis.Law

On December 27, 2018 a Party Discovery was filed involving a dispute between Boudreau, John, On Behalf Of All Others Similarly Situated, and Does 1-10, Mcginness, Chris, Primeritus Financial Services Inc, for (Other Employment Complaint Case) in the District Court of Sacramento County.

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Alejandro P. Gutierrez, SBN 107688
1 agutierrez(^hathawaylawfirm.com
HATHAWAY, PERRETT, WEBSTER, POWERS,
2 CHRISMAN & G U T I E R R E Z , A P C
5450 Telegraph Road, Suite 200
3 Ventura, CA 93006-3577
4
Telephone: (805) 644-7111
Facsimile: (805) 644-8296
FILED/ENDORSED
5 Daniel J. Palay, SBN 159348 JUL 1 5 2020
djp(^calemploymentcounsel.com
6 Brian D. Hefelfmger, SBN 253054
By: E. MHdIna
bdh(^calemploymentcounsel.com Deputy Cledi
7 P A L A Y HEFELFINGER, APC
1746 S. Victoria Avenue, Suite 230
8 Ventura, Califomia 93001
Tel: (805) 628-8220
9 Fax:(805) 765-8600
10 Attorneys for Plaintiffs JOHN BOUDREA U
and the Certified Class
11

13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SACRAMENTO (UNLIMITED)
15
JOHN BOUDREAU, an individual, on behalf of CASENO.: 34-2018-00247272
16 himself and all others similarly situated.
Complaint filed: Dec. 27, 2018
17 Plaintiffs, Assigned to Dept. 54
18
vs.
19 DECLARATION OF DANIEL J. PALAY
PRIMERITUS FINANCIAL SERVICES, INC.,
a Delaware Corporation; CHRIS IN SUPPORT O F M O T I O N F O R
20 MCGUINNESS, an individual; and DOES 1 SUMMARY A D J U D I C A T I O N
through 10, inclusive. [Filed Concurrently with Motion for
21
Summary Adjudication; WSeparate
Defendants. Statement; Proposed Order]
22

23
RESERVATION #2517993
24 Date: Sept. 24, 2020
25 Time: 9:00 a.m.
Dept: 54
26

1
DECLARATION OF DANIEL J. PALAY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 T O T H E C O U R T , A L L P A R T I E S AND T H E I R A T T O R N E Y S O F R E C O R D H E R E I N :

2 I , DANIEL J. PALAY, hereby declare as follows:

3 1. I am an attorney at law admitted to practice before all courts of the State of California,
4 and am an attomey with the law firm of Palay Hefelfmger, APC. I am one of the attomeys of record for
5 Plaintiff John Boudreau and the certified class in the above-entitled case. If called as a witness, I
6 would and could competently testify hereto of my own personal knowledge.
7 2. I give this declaration in support of Plaintiff s Motion for Summary Adjudication.
8 3. On or about December 27, 2018, the complaint in this matter was filed alleging various
9 violations of the Califomia Labor Code.
10 4. In an effort to streamline the litigation of this case, on January 10, 2020, the parties
11 entered into a stipulation which requested the Court permit the filing of a CCP §437c(t) motion
12 concerning specific issues. A true and correct copy of this stipulation is attached hereto as Exhibit " 1 " .
13 5. Contained within this stipulation is a stipulation of facts.
14 6. Also attached to the stipulation is an exemplar of the wage statements received by all
15 class members. These wage statements reference payments made as commissions and do not contain
16 the number of piece rate units earned and applicable piece rates.
17 7. On January 31, 2020, the Court approved this stipulation and order and scheduled the
18 hearing of this matter for June 22, 2020. A tme and correct copy of this order is attached hereto as
19 Exhibit "2".
20 8. On December 16, 2019, my office propounded Requests for Admissions (Set Two) upon
21 the Defendants. A tme and correct copy of these Requests for Admissions are attached as Exhibit "3".
22 9. On January 15, 2020, responses were received to these requests for admissions. A tme
23 and correct copy of these verified responses to requests for admission are attached hereto as Exhibit "4".
24 1 declare under penalty of perjury under the laws of the State ofCalifomia that the foregoing is
25 tme and correct.
26

27 ///
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DECLARATION OF DANIEL J. PALAY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 Dated on July 13, 2020 at Ventura, California.
2
3
DANIEL J». PALAvj'
4 Attomeys for Plaintiff
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DECLARATION OF DANIEL J. PALAY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
EXHIBIT 1
[Dec. of D.Palay]
1 Alejandro P. Gutierrez, SBN 107688
agutierrez@hathawaylawfirm.com
2 HATHAWAY, PERRETT, WEBSTER, POWERS,
CHRISMAN & GUTIERREZ, APC
3 5450 Telegraph Road, Suite 200
Ventura, CA 93006-3577
4 Telephone: (805) 644-7111
Facsimile: (805) 644-8296
5
Daniel J. Palay, SEN 159348
6 djp@calemploymentcounsel.com
Brian D. Hefelfmger, SBN 253054
7 bdh@calemploymentcounsel. com
PALAY HEFELFINGER, APC
8 1746 S. Victoria Avenue, Suite 230
Ventura, California 93001
9 Tel: (805) 628-8220
Fax: (805) 765-8600
10
Attomeys for Plaintiffs JOHN BOUDREAU
11 and the Putative Class
12
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
FOR THE COUNTY OF SACRAMENTO (UNLIMITED)
15
16 OHN BOUDREAU, an individual, on behalf of CASE NO.: 34-2018-00247272
limself and all others similarly situated,
17 Complaint filed: Dec. 27, 2018
Plaintiffs, Assigned to Dept. 14, Hon. Tami R. Bogert
18
vs. STIPULATION AND [PROPOSED]
19 ORDER REGARDING
RMERITUS FINANCIAL SERVICES, INC., a
20 Delaware Corporation; CHRIS MCGUINNESS, CERTIFICATION OF CERTAIN
in individual; and DOES 1 through 10, inclusive, CLASSES, DISMISSAL OF
21 DEFENDANT CHRIS MCGINNESS
Defendants. AND DISMISSAL OF CERTAIN
22 CLAIMS, AND STIPLXATION TO
23 FILE CERTAIN MOTIONS FOR
SUMMARY ADJUDICATION
24
25
26
STIPULA TION OF THE PARTIES RE: CLASS CERTIFICATION, DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND
MOTION FOR SUMMARY ADJUDICATION
27
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1 IT IS HEREBY STIPULATED by and between John Boudreau ("Plaintiff) and Defendants
2 PRIMERITUS FINANCIAL SERVICES, INC., a Delaware Corporation ("Primeritus"); and CHRIS
3 MCGINNESS (erroneously referred to as "McGuinness", an individual (together, the "Defendants"),
4 by and through their respective counsel of record, that in order to facilitate the streamlining of this
5 case and the most efficient handling of this matter, the parties stipulate and agree, subject to Court
6 approval, as follows:
7 I. RECITALS
8 1. On December 27, 2018, Plaintiff John Boudreau filed a Class Action Complaint alleging
9 various wage and hour causes of action including the failure to pay minimum wages, the failure
10 to authorize and permit rest and meal periods, the failure to provide lawful wage statements, and
11 the violation of California Business and Professions code § 17200.
12 2. On January 3, 2019, Plaintiffs counsel sent conrespondence to the Labor and Workforce
13 Development Agency and the Defendants, including the Primeritus* CEO, Mike Thomas,
14 providing PAGA notification in accordance with California Labor Code §2699.5.
15 3. On or about Febmary 18, 2019, Defendants filed an Answer to the Class Action Complaint.
16 4. On April 12, 2018, following the exph-ation of the time necessary to wait before filing a PAGA
17 action. Plaintiff filed its First Amended Complaint, which included a cause of action for PAGA
18 penalties.
19 5. On or about May 10, 2019, Defendants filed an answer to the First Amended Complaint.
20 6. Whereas, the parties believe that the legality as to how Defendant Primeritus paid Plaintiff and
21 the putative class is at issue. The paities have conducted substantial discovery and believe that
22 the underlying facts as to how each employee was paid are largely not in dispute. The parties
23 also believe, based on the discovery conducted, that certain claims can, at this juncture, be
24 dismissed. The parties wish to have the legality of the manner in which class members were
25
26 STIPULA TION OF THE PARTIES RE: CLASS CERTIFICATION, DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND
MOTION FOR SUMMARY ADJUDICATION
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1 paid be determined by a motion for summary adjudication. However, the parties recognize that
2 such a determination might not dispose of the entire cause of action, as Plaintiff is claiming
3 additional violations including PAGA penalties and associated damages.
4 7. Whereas, the parties have met and conferred, and are in agreement that resolution of the legal
5 issue in the matter, by way of summary adjudication motion, would facilitate resolution of the
6 action and judicial economy if determined early in this case.
7 8. Whereas, the Rules of Court, 3.762 et seq., permit the court and counsel for the parties' latitude
8 to schedule discovery, hearings, and other matters germane to resolution of the action in the
9 interest of judicial economy, and to enter into stipulations conceming such.
10 9. Whereas California Code of Civil Procedure §437c(t) permit the parties to stipulate to allow a
11 motion for summary adjudication of a legal issue or a claim for damages other than punitive
12 damages that does not complete dispose of a cause of action.
13 10. Whereas the pailies have agreed to waive the time and filing requirements pursuant to CCP
14 §437c(2) if the dmeframes suggested in this stipulation are adopted by the Court.
15 11. Whereas, the parties agree that the hearing of such a motion will further the interest of judicial
16 economy by decreasing trial time and significantly increasing the likelihood of settlement.
17 H. STIPULATION
18 Pursuant to the foregoing recitals, which are incorporated herein by this reference, and subject to
19 this Court's approval, the parties hereby stipulate and agree as follows:
20 A. Cross-Motions for Summarv Adjudication as the Legality of the Defendant's payments
21 for rest periods and non-productive time.
22 1. Plaintiff and Primeritus will file Cross-Motions for Summary Adjudication on the legality of
23 the manner in which Primeritus paid Plaintiff and the putative class for rest periods and non-
24 productive time. These motions may also include adjudication of additional and related legal
25
26 STIPULA TION OF THE PARTIES RE: CLASS CERTIFICATION, DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND
MOTION FOR SUMMARY ADJLDICATION
27
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1 issues including the Labor Code §226 (paystub claim) and the adjudication of certain penalties.
2 2. The deadline for the parties to file and serve cross-motions for Summary Adjudication of this
3 issue shall be fourteen days from the close of the class opt out period.
4 3. The oppositions to the cross-motions shall be filed and sei-ved thirty days after the filing of the
5 motions;
6 4. Any replies to the cross motions shall be filed and served within twenty-one days of the service
^ of the oppositions.
8 5. The hearing on the motion will take place on the Court's next available hearing date after the
9 fiUng of the replies.
10 6. In consideration of this agreement. Defendant Primeritus agrees to stipulate to the certification
11 of the class, defined as "All non-exempt cun-ent and former employees of Primeritus who were
12 employed by Primeritus in Califomia during the class period, December 27, 2014 to August
13 12, 2019, who held the position of Investigator/skip tracer.
14 7. There are members of the proposed class who, prior to the stipulation, have entered into
1^ settlement agreements with Primeritus. Notwithstanding this Stipulation regarding class
16 certification, the Class reserves all rights to contend those agreements aie unenforceable and
1^ Defendants reserve all rights to contend those agreements are enforceable and preclude the
15 signatories from participating in the Class.
19 8. In consideration of this agreement, Plaintiff agrees that he and the class will not pursue
20 individual or class claims associated with meal periods in this lawsuit. The claims in this case
21 shall be limited to the Plaintiffs allegations that Primeritus failed to pay for all non-productive
22 time, including rest periods in comphance with California law, failed to pay the minimum
23 wage, and failed to provide lawful wage statements in accordance with California Labor Code
24 §226. These claims shall also include associated penaUies, PAGA liabihty. Labor Code §203
25

26 STIPULA TION OF THE PARTIES RE: CLASS CERTinCATION, DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND
MOTION FOR SUMMARY ADJUDICATION

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1 liability, and associated violations stemming from the failure to pay lawfully including Labor
2 Code §226.7 §1194, §1197.1 (minimum wage and liquidated damages) and §226.2. Plaintiff
3 will also be claiming attorney's fees pursuant to Cahfornia Labor Code §218.5, §226, §1194,
4 and §2699 as well as interest and costs. Plaintiff agrees not to proceed with the prosecution of
5 claims associated with the failure to provide meal periods, the failure to remit payment for
6 meal periods which allegedly did not lawfully occur, or the failure to provide the opportunity
7 to take rest periods. With regard to rest periods, and for purposes of this matter, the class is
8 not claiming that Primeritus failed to make rest periods available, but that it failed to provide
9 compliant rest periods by failing to pay at least the minimum wage for the rest periods.
10 B. DISMISSAL OF DEFENDANT MCGINNESS
11 9. The parties agree that Defendant Chris McGuiness will be dismissed from the Action without
12 prejudice and will not be reinstated as a Defendant unless, in the event of a Judgment,
13 Defendant Primeritus is unable to and fails to satisfy the judgment. In that unhkely event.
14 Defendant McGinness reserves all rights to defend the action on the merits and waives none of
15 those rights by agreeing to be dismissed at this time without prejudice. Plaintiff agrees it will
16 be required to reopen the trial proceedings to demonstrate that as a matter of fact and law, Mr.
17 McGuiness could be liable for any judgment.
18 C. STIPULATION FOR PUPOSES OF THE 437cft) MOTION
19 In the interest of streamlining the hearing of this matter, the parties stipulate that the following
20 facts are uncontested for all purposes.
21 1. Defendant Primeritus Financial Services, Inc. operates a facility in El Dorado Hills,
22 California. At all relevant times herein. Plaintiff and members of the putative class were
23 employed by Defendants as non-exempt employees in the position of investigator/skip
24 tracer. Plaintiff and the putative class members' job was to perform skip searches and
25
26 STIPULA TION OF THE PARTIES RE: CLASS CERTIFICATION, DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND
MOTION FOR SUMMARY ADJUDICATION
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1 Other desk-based reseaich to assist their clients in locating collateral. Defendant plays no
2 role in the physical repossession of collateral.
3 2. Plaintiffs initial complaint in this matter was filed on December 27, 2018. Accordingly,
4 with respect to claims that apply a four-year statute of limitations, that would extend back
5 to December 27,2014.
6 3. This court has jurisdiction over this matter.
7 4. During all relevant times within the statutory period, Primeritus was the employer of
S Plaintiff and the class.
9 5. During all times relevant times within the statutory period, Defendant Chris McGinness
10 was employed by Primeritus. He has been the Chief Operating Officer for approximately
11 one year. Prior to that, he was the senior vice president of operations for approximately
12 two and a half yeais. Prior to thattime,he was employed as a vice president and general
13 manager for a period of approximately two and half years.
14 6. The deposition of Wayne Acklen Jr. was taken on November 6, 2019. Mr. Acklen was
15 designated as the PMK for the Defendants.
16 7. The deposition of the Plaintiff John Boudreau was taken on November 19, 2019.
1^ 8. The deposition of Chris McGinness was taken on August 28,2019.
IS 9. During the statutory period, all class members were participated in similar pay plans. Each
19 class member was promised that he/she would receive $8.00 for each hour worked. The
20 named Plaintiff and the class members, in addition to the $8.00 per each hour worked, were
21 informed that each would be paid pursuant to an incentive plan on a piece rate basis for
22 each item of collateral located by them and recovered by the third party recovery service.
23 Defendants' compensation plan was in effect for Plaintiff and members of the putative
24 class from December, 27 2014 tiirough August 12, 2019. The aforementioned pay plan
25
6
STIPULA TION OF THE PARTIES RE: CLASS CERTIFICATION, DISMISSAL OF CERTAIN CLAIMS ANT) DEFENDANTS AND
26 MOTION FOR SUMMARY ADJUDICATION

27
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1 awai'ded points system for each piece of collateral located by the class member and
2 recovered by the third party rc-possessor. Each point eamed was worth $25.00 of piece
3 rate pay. The number of "points" eamed per item of collateral recovered depended on
4 which of Defendant's client accounts the class member worked with. Class members were
5 informed that they were being paid in the manner reflected above.
6 10. Each class member received wage statements that are in the same format as are attached as
7 Exhibit "1" and which contained the same type of information. Defendant Primeritus
8 practices for creating wage statements was uniformly applied to all class members during
9 the statutory period. The general format of the wage statements did not vary during the
10 class period.
11 11. The Califomia minimum wage in 2014 and 2015 was $9.00/hour; in 2016 it was
12 SlO.OO/hour; in 2017 it was $10.50/hour; and in 2018 it was $11.00/hour; and in 2019 it is
13 $ 12.00/hour for employers with more than 25 employers.
14 12. The parties agree that Primeritus employed more than 25 employees at all times referenced
15 herein
16 13. Although the paities have a factual disagreement concerning the amount of non-productive
17 time worked by class members on a weekly basis, the parties agree that rest periods and
1S possibly other non-productive time (meetings with management) did occur as that term is
19 defined in California Labor Code §226.2. Any non-productivetimeoccurring during the
20 work day was not recorded by Primeritus during the statutory period. There is no written
21 record of the amount of non-productive time worked by class members during the statutory
22 period
23 14. During rest periods or non-productive time worked, the Plaintiffs did not and could not
24 work toward earning a piece rate.
25
7
STIPULA TION OF THE PARTIES RE: CLASS CERTIFICATION, DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND
26 MOTION FOR SUMMARY ADJUDICATION

27
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1 15. The Class contends that during rest periods and non-productive time, that each did not
2 receive at least the minimum hourly wage for such time.
3 16. Primeritus contends that the eight dollars paid for each hour worked satisfied any
4 requirement to separately pay for non-productive time and that, given the amount of hourly
5 pay received and the limited non-productive time, no minimum wage violation occurred.
6
7
8
Dated: January 10, 2020 LITTLE]
9
10
11
12
Attorneys for Defendants
13 PRIMERITUS FINANCIAL SERVICES,
INC., A DELAWARE CORPORATION;
14 CHRIS MCGINNESS, AN INDIVIDUAL
Dated: January 10, 2020 HATHAWAY, PERRETT, WEBSTER,
15 POWERS, CHRISMAN & GUTIERREZ.
APC
16
PALAY HEFELFINGER, APC
17
18
19
Alejandrof^. Gutierrez, Esq.
20 Daniel J. Palay, Esq./
Brian D. Hefelfinger, Esq.
21
Attorneys for Plaintiff
22 JOHN BOUDREAU

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26
STIPULA TION OF THE PARTIES RE: CLASS CERTIFICATION, DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND
MOTION FOR SUMMARY ADJUDICATION
27
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Exhibit 1 -
Exemplar Pay Stub
P R I M E R I T U S F I N A N C I A L S E R V I C E INC
435 METROPLEX DRIVE
NASHVILLE TN 37211

JOHN ABOUDREAU
3210 OXFORD ROAD
CAMERON PARK CA 95682

EMPLOYEE AND TAX INFO
Employee* 1058. FITWH M 0
Departments 887060 CA MO
SSN: ' — - " - 2 1 5 5

BI-WEEKLY CURRENT i
Regular aoo 7600
Overtime 12'00 S.CJO • 60.00
Sicl< -
Cornmission
OTComm;
Fioai Hof ••
HOLL'S' f».75
Holiday, 24 00
'.Meal Pnlty 3,on
PTO 101.C3.

974.50. TOTALS .i.46a.s;'

THIS IS NOT A GtfEeK=^fHrs

PRIMERITUS FINANCIAL SERVICE !NC
435 METROPLEX ORiVE
NASHVILLE TN 37211

Pay. this Amount
NINE HUNDRED SEVENTY-FOUR & 50/100 DOLLARS'

Pay to the CA 557050
Order of JOHN A BOUDREAU
32TO OXFORD ROAD
CAMERG?^ P,".RK CA 55552
-IFTH THIRD BANK
Proposed Order
rPRPOSEDI ORDER
1
Pursuant to the foregoing stipulation, and good cause appearing, it is hereby ordered as
2
follows:
3
1. A class of current and former employees of Defendant Primeritus Financial Services, Inc., as
4
defined is this stipulation, is hereby certified. Plaintiff shall resubmit a form of notice to the
5
class by
6
2. The Court finds good cause to permit the filing of a motion for summary judgment pursuant to
7
CCP §437c(t).
8
9
3. The deadline for Plaintiff and Defendant to file Cross- motions for Summary Adjudication of
10
this issue shall be set to ;
11
4. Opposition to these motion for shall will be filed and served on or before ;
12
5. Replies in support of these motions will be filed and served on or before ;
13
6. The hearing on the motions will take place on , or the Court's next available
14
hearing date thereafter.
15
7. The clerk of the Court shall dismiss Defendant Chris McGinnessfiromthis action without
16
prejudice.
17
8. Plaintiffs claims for failure to provide meal periods is dismissed without prejudice. Plaintiff
18
understands and agrees that the rest period claim is exclusively based upon the failure to
19
properly remit at least the minimum wage for such rest periods, not upon whether rest break
20
time was provided in accordance with California law. That theory of recovery will not be
21
pursued further in this action on a class or individual basis.
22
23
Dated: January ,2019
24 THE HONORABLE TAMI BOGERT
25
26 STIPULA TION OF THE PARTIES RE: CLASS CERTIFICATION, DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND
MOTION FOR SUMMARY ADJUDICATION
27
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?0".0 PCW R'^cyci<3d Tab
Order orHisia today

a00-S77-3031
EXHIBIT 2
[Dec. of D.Palay]
1. Alejandro P. Gutierrez, SBN 107688
agvtierreif^athawaylaivfirm. com FILED
2 HATHAWAY, PERRETT, WEBSTER, POWERS,
CHRISMAN & GUTIERREZ. AFC
3 S4S0 Telegraph Road. Suite 200
Ventura, CA 93006-3577 JAM 3 1 2020
4
TelMhone: (805) 644-7111
5 Facsimile: (805) 644.-8296
Daniel J. Palay. SBN IS9348
6 4'p@ettlemploymeHtcounsel.com
Brian D. Hefeifinger. SBN 253054
7 hdh@calemjJoymentcoumel.com
PALAY HErELFlNGER, APC
8 1746 S. Victoria Avenue, Suite 230
Ventura, Galifomia 93001
9 Tel: (805) 628-8220
Fax: (80i5) 765-8600
10
Attorneys for Plaintiffs JOHN BOUDREA U
11 and the Putative Class
12
13 SUPERIOR COURT OF THE STATE OF CAUFORNIA
14
FOR THE COUNTY OF SACRAftlENTO (UNLIMITED)
li
16
OHN BOUDREAU, an Individual, on l»»hairof CASE NO.: 34-2018-00247272
17 kimseif and all others similarly situated.
Complaint filed: Dec. 27.2018
18 Plaintins,
vs. STIPULATION AND"
19 ORDER REGARDING
20 »RIMERITUS FINANCIAL SERVICES, INC., a CERTIFICATION OF CERTAIN
Delaware Corporatiort; CHRIS MCGINNESS, an CLASSES, DISMISSAL OF
11 ndividuai; and DOES ) through 10, inclusive. DEFENDANT CHRIS MCGUINNESS
AND DISMISSAL OF CERTAIN
22. Defendants. CLAIMS, AND STIPULAtlON TO
23 FILE CERTAIN MOTIONS FOR
SUMMARY ADJUDICATION
24
25
IT IS HEREBY STIPULATED by and between John Boudreau- ("Plaintiff') and Defendants
26
27 STiPriATIO.N OFTilE PARTIES RE: Cl-ASS CERfiFtC'^TION. DISMISSAL OF CERTAIN CLAIMS AND DFJ^FJ^OAYl S AKD
M0TI6.MroRSL.MMARV .UIjrDICATION
28
1 PRIMERITUS FINANCIAL SERVICES, INC., a DclaAvarc Corporation ('-Primeriius"); and CHRIS
2 MCGINNESS, an individual (together, the "Defendants"), by and through their respective counsel of
3 record, that in order to facilitate the streamlining of this case and the most efficient handling of this
4 matter, the parties stipulate and agree, subject to Court approval, as Follows: .
5 I. RECITALS
6 1. On December 27, 2018, Plaintiff' John Boudreau filed a Class Action Complaint alleging
7 various wage and hour caijses of action mcluding the failure to pay minimum wages,, the failure
8 to authorize and pennit rest and meal periods, the failure to provide lawful wage statements, and
9 the violation ofCalifomia Business and Professions code §17200.
10 2. On January- 3, 2019, PlaintiiT's counsel sent conrespondence to. the Labor and Workforce
11 Development Agency and the Defendants, including the Prirnerilus' CEO, Mike Thomas,
12 providing PAGA notification in accordance with Califomia Labor Code §2699.5.
13 3. On or about February 18,2019, Defendants filed an Answer to the Class Action Complaint.
14 4. On April 12,2018. following the expiration of (he time necessary to wait before filing a PAGA
15 action. Plaintiff filed its First Amended Complaint, which included a cause of action forPAGA
16 penalties.
17 5. On or about May 10, 2019, Defendants filed an answer to the First Amended Complaint.
18 6. Whereas, the parties believe that the legality as to how Defendant Primeritus paid Plaintiff and
19 the putative class is at issue. The parties have conducted substantiol discovery and believe that
20 the underlying facts as to how each employee was paid are largely not in dispute. The parties
21 also believe, based on (he discovery conducted, riiat certain claims can, at this juncture, be
•22 dismissed. The parties wi.<19.«1M.1 OS73D8 1007
I 7. Whereas, the patties have met and conferred, and are in agreement that resolution of the legal
2 issue in the matter, by way of svimmary adjudication motion, would facilitate resolution of the
3 action and judicial economy if determined early in this case.
4 8. Whereai, the Rules of Court, 3.762 et .seq., permit the court and counsel for the parties' latitude
5 to schedule discovery, hearings, and other matters germane to restilution of the ainion in the
6 interest of judicial economy, and to ^ter into stipplations conceming such.
7 9. Whereas California Code of Civil Procedure §437.c(t) permit the paities to stipulate to allow a
8 motion for summary adjudication of a legal issue or p claim for damages other than punitive
9 damages that does not complete dispose of a cause of action.
10 10. Whereas the parties have agreed to waive the time .and filing requirements pursuant to CCP
II §437c(2) if the tiraefiramcs suggested in this stipulation are adopted by the Coutt.
12 11. Whei«as, the parties agree that the hearing of such a motion will further the .interest of judicial
13 economy by decreasing trial tinrte and significantly increasing (he likelihood of settlement.
14 U. STIPULATION
15 Pursuant to the foregoing recitals, which are incorporated herein by this reference, and subject to
16 this Court's approval, the parties hereby stipulate and agree as follows:
17 A. Cross-Motions for Summarv Adiudicatinn as the Legality of the Defendant's payments
18 for rest periods and non-productive time.
19 1. PlaintilTand Primeritus will file Cross-Motions for Summaiy Adjudication on the legality of
20. the manner in which Primeritus paid Plaintiff and the putative class for rest periods and non^
21 {>roductivc time. These motions may also include adjudication of additional and related legal
22 isisues including the Labor Code §226 (paystub cloim) and the adjudication of certain penalties.
23 2. The deadline for the parties to file and serve cross-motions for Summary Adjudication of this
24 Issue shall be fourteen days from the close of the class opt out period.
25 3. The opfwsiiions to thc-cross-rrtotions shall be filed and served thirty days after the filing of the
26
3
27 STim.AnON OF n i C PARTIES RE: CLASS CEBTiriCATtON, DISMLSSAL OF CERTAIN CXAIMS ANO DCFTMnANTS AND
MOTION FOR aiMKURY ADJrDITATIOK
28
4«$l-l«99-9090.l m i m 1007
1 motions;
2 4. Any replies to the cross motions shall be filed and served wilhin twenty-one days of Ihe service
3 ofthe oppositions.
4 5. The hearing on the motion will take place on the Court's next available hearing date after the
5 filing of the replies.
6 6. In consideration of this agreement, Defendant Primeritus agrees to stipulate to ihe certification
7 ofthe class, defmed as "All non-exempt currcntand fonmcremploye.es of'Primeritus who were
8 employed by Primeritus in Califomia during the class period, December 27, 2014 to August
9 10, 2019, who held the position of Investigator/skip tracer.
10 7. There are members of the proposed diss who, prior lo the stipulation, have entered into
11 settlement agreements with Primeritus.. Notwithstanding this Stipulation regarding class
12 certification, the Class reserves all rights to contend those agreements are unenforceable ond
13 Defendants reserve allrightsto contend those agreemcnis are enforceable and preclude the
14 signatories from paiticipating in the Class.
15 8. In consideration of this agreement. Plaintiff agrees that he and the class will not pursue
16 individual or class claims associated with meal periods in thii lawsuit. The claims in this case,
17 shall be limited to the PlaintifTs allegations that Primerinis failed to pay for all non-productive
18 time, Including rest periods in compliance with Califomiii law. failed to pay the minimum
19 wage, and failed to provide lawiul wage statements in accordance with Califomia Labor Code
20 §226. These claims shall also include associated penalties, PAGA liability'. Labor Code §203
21 liability, and associated violations stemming from the failure to pay lawfully including Labor
22 Code §226.7 §1194. §1197.1 (minimum wage and liquidated damages) and §226.2. Plaintiff
23 will also be claiming attorney's fees pursuant to Califomia Labor Code §218.5, §226. §1194,
24 and §2;699 as well as interest and costs. Plaintiff agrees not to proceed with the prosecution of
25 claims associated with the failure to provide meal periods, the failure to remit payment for
26
4
27 STin'I.AnON OF THE PARTIES RE: CLASS CERTinCATlON, DISMISSA L OF CERTAIN CLAIMS AND DEFENDANTS AND
MOTIO.N FOR SUMMARY ADJlfPICATION
28
4g5i-llS99'»tN0.l 0R7milV)7
I meal periods which allegedly did not lawfully occur, or the failure to provide the opportunity
2 to take rest periods. With regard lo rest periods, and for purposes of this matter, the class is
3 not claiming that l^imcritus failed to make rest periods available, but that it failed to provide
4 compliant rest periods by failing to pay at least the minimum wage for the rest periods..
5 B. DISMISSAL OF DEPENDANT MCGINNESS
6 9. The parties agree .that Defendant Chris McGinness will be dismissed from the Action without
7 prejudice: and will n6t be reinstated as. a Defendant unless, in the event of a Judgment,
8 Defendant Primeritus is unable to and fails to satisfy the judgment. In that unlikely event.
9 Defendant McGinness reserves allrightsto defend the action.on the merits and waives none of
10 thoserightsby agreeing to be dismissed at this time without prejudice. Plaintiff agrees it will
11 be rcijuired to reopen the trial proceedings to demonstrate that as a matter of fact and law, Mr.
12 McGuiness could be liable for any judgment.
13 C. STIPULATION FOR PUPOSES OF THE 437c(t> MOTION
14 In the interest of streamlining the hearing of this matter, the parties stipulate that.the following
15 facts are uncontested for all purposes.
16 1. Defendant Primeritus Financial Services; Inc. operates a facility in El Dorado Hill!s
17 Califomia. At all times relevant herein. Plaintiff and members ofthe puutive class were
18 employed by Defendants as non-exempt employees in the position of Investlgator/sklp
19 tracer. Plaintiff and the putative class, nwmbcrs' job was to perform skip searches and
20 other desk-based research to assist their dientis ih locating collateral. Defendant plays no
21 role in ihe physical repossession of collateral.
22 2. Plaintiffs initial complaim in this matter was filed on December 27, 2018. Accordingly,
23 with respect to claims thatopply a four-year statute of limitations, that would extend back
24 to December 27. 2014.
25 ' 3. This court has jurisdiction over this matter.
26
5 ' •
27 STIPIILATION OFTHE PARTIES RF.: CLASS CERTIFICATION, DIS.MISSAL0F CERTAIN CLAIMS AND DEFENDANTS AND
MOTION FDR SUIMMAKV ADJUDICATION
28
4XSI-l6Vll. for each hour worked. The
14 named Plaintiff and the class members,, in addition to the $8.00 per each hour worked, were
15 informed that each would be paid pursuant to an incentive plan on a piece role basis for
16 each item of collateral located by them and recovered by the third party recoveiy service.
17 Defendants' coinpcnsation plan was in effect for Pbintiff and members of the putative
18 class from December. 27 2014 through August 10. 2019. The aforementioned pay plan
19 awarded points system for each piece of collateral located by the class member ahd
20 recovered by the third party repossessor. Each p6int earned was worth S2S.00 of piece rare
21 pay. The number of "points" earned per item of collateral that was recovered depended oh
22 which of Defendant's client accounts Ihc class member worked with. Class members were
23 informed that they were being paid in the manner reflected above.
24 10. Each class member received wage statements that ore in the same format as are attached as
25 Exhibit "1" and which conuined (he same type of information. Defendant Primeritus
26
6
27 STIPULATION OFTHE PARTIES RE: CLASS CERTIFICATION, DISMISSAL OF CERTAIN CLAI.MS AND OEFENOAVTS AND
MOTION. fVH SII.MMARV ADJUDICATION
28
48i|.l<4M.90»0.l t'HT.mion?
I practices for creating wage statements was uniformly applied to all class members during
2 the statutory period, llie general format of the wage statements did not vary during the
3 class period.
4 11. Tlie Califomia minimum wage in 2014. and 2015 Was $9.00/hour; in 2016 it was
5 SlO.Oa'houn in 2017 it was SlO.SO/hour; and in 2018 it was $11.00/hour; and in 2019 it is
6 512.00/hour for employers with more than 25 employers.
7 12. The parties agree that Primeritus employed nnorc than .25 emplo]^'ees at all times referenced
8 herein.
9 13. Although the parlies have a factual disagreement conceming (he amount of non-productive
10 time worked by class members on a weekly basis, the parties agree that rest periods and
1] possibly other non-productive time (meetings with management) did occur as that term is
12 defined ih Califomia Labor Code §226.2. Any non-productive time occurring during the
13 wvrk day was nul recorded by Primeritus- during the statutory period. There is no written
14 record ofthe amount of non-productive time worked by class members during the statutory
15 period
16 14. During rest periods or non-productive time worked, the Plaintiffs.did not and could not
17 work toward earning a piece rate.
18 15.11ie Class contends that during rest periods and non-produciive time, that each did not
1? receive at least the minimum houriy wage for such time.
20 16. Primeritus contends that the eight dollars paid for each hour worked satisfied any
21 requirement, to separately pay for non-productive time and that, given the amount of hourly
22 pay received and the limited non-productive time, no minimum wage violation occurred.
23
24
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27 SriPl-LATION OFTHC PARTIES RE: CLASS CERTIFICATiaN. DISKIISSAL OF CERTAIN ti^^lMS AND DEFENDA.VT^ AND
MOTION FOR SUMMARY ADJl'DICAnON
28 4«ji. ifivp-TOW. i oii7)ns. inn?
I Dated: JanuaryJLl. 2020 LIITLER MENDELSON. P.C.
2
3
4
Keith A. Jacoby, EaefT
5 Bradley E. Schwan, Esq.
Nathaniel H. Jenkins. Esq.
6
Attomeys for Defendants
7 PRIMERITUS FINANCIAL SERVICES.
INC.. A DELAWARE CORPORATION;
8 CHRIS MCGINNESS, AN INDIVIDUAL

9
10
Dated: January 27_, 2020 HATHAWAY, PERRETT. WEBSTER,
II POWERS, CHRISMAN & GUTIERREZ,
APC
12
PALAY HEFELFINGER. APC
13
14
By:
15 . Alejandro P; ,Esq.
Daniel J. Pal
16 Brian D. Hefelfmger, Esq
17 Attomeys for Plaintiff
JOHN BOUDREAU
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27 STIPl'LATION OFTHE PARTIES RE: Cl ASS CERTIFICATION, DISMISSAL OF CEKI AIN CIAIMS AND OEPENDAMtS AND
MOTION FORSL'MMARVAixritOICAriON
28
4(51-1(99-9090.1 017303.1007
1
UQB££B
Pursuant to the foregoing stipulation, and good cause appearing, it is hereby ordered as
2
follows:
3
1. A class oftNtrrent and formpKrtJployces of Defendant Primeritus Financial Scr\'iccs, Inc., a.s
4
defined is ihis sy^ril|tion, is hereby certified. Plaintiff shall resubmit a fonm of notice to the
5.
cla^
6
2. The Court finds good cause to permit the fi ling of a motkm for summer)' judgment pursuant to
7
CCP §437c(t).
8
3. The deadline for Plaintiff and Defendant to file Cross- motions for Summary Adjudication of
9
this issue shall be set vS^^/ ^/^Oi^O i /
10
4. Opposition to these rhotioh for shall will befiledand served.on or before--S/z^/^^o^
II
5. Replies Ih support of these motions will befiledand served on or before"^ //^Ui^^
12
6. The hearing on the motions will take place on /^^y^Sfij^r the Court's next available
13
hearing date thereafter.
14
7. The clerk ofthe Court shall dismiss Defendant Chris McGinness from this action without
IS
prejudice.
16
8. Plaintiff's claims for failure to provide meal periods is dismissed without, prejudice. Plaintiff
17
understands and agrees that the rest period claim is exclusively based upon the failure to
18
properly reniit at least the minimum wage for such rest periods, hot upon whether rest break
.19
time was provided in accordance.with California law. That theory of recovery will not be
20
pursued further in this action on \
21
22 ^ ^ ^ ^
Dated:
23
acram.enio County Superior Court
24
25
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27 STIPI'l ATH>N OF THE PARTIES RE; CLASS CERTIFICATION. DISMISSAL OF CERTAIN Cl ALMS AND DEFENDANTS AND
MOTION FOR SUMNURV ADJI;0ICATION
28
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EXHIBITA
PRIUBUTUS FDIANCIAL SERVICE DIC

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Case Info

Judge

Kevin R. Culhane Track Judge’s New Case

Case No.

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Document Filed Date

July 15, 2020

Case Filing Date

December 27, 2018

County

Parties

Alejandro P Gutierrez Attorney for the Plaintiff
Boudreau, John Plaintiff
Brian D Hefelfinger Attorney for the Plaintiff
Daniel J Palay Attorney for the Plaintiff
Does 1-10 Defendant
Keith A Jacoby Attorney for the Defendant
McGinness, Chris Defendant
on behalf of all others similarly situated Plaintiff
Primeritus Financial Services Inc Defendant
Bradley Schwan Attorneys for Defendants
Nathaniel Jenkins Attorneys for Defendants
David Phillips Attorneys for Defendants
Alejandro Zaffaroni Attorneys for Plaintiffs

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Party Discovery: John Boudreau vs. Primeritus Financial Services Inc

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