Preview
19CV347249
Santa Clara — Civil
System System
Electronically Filed
Steven M. Tindall (SBN 187862) by Superior Court of CA,
smt@classlawgroup.com County of Santa Clara,
Jeffrey Kosbie (SBN 305424) on 1/6/2020 4:55 PM
jbk@classlawgroup.com
GIBBS LAW GROUP LLP Reviewed By: System System
505 14th Street, Suite 1110 Case #19CV347249
Oakland, California 94612 Envelope: 3848676
Telephone: (510) 350-9700
Fax: (510) 350-9701
Attorneys for Plaintiffs
ALEXANDER CHARLES and HENRY MULAK
Rafael G. Nendel-Flores (SBN 223358)
RNendelFlores@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
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Fax: (213) 488-1178
13 Attorneys for Defendant
VARSITY TUTORS LLC
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
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COUNTY OF SANTA CLARA
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17 DOWNTOWN SUPERIOR COURT
18 ALEXANDER CHARLES and HENRY Case No. 19CV347249
MULAK,
19 JOINT CASE MANAGEMENT CONFERENCE
20 Plaintiffs, STATEMENT
21 a Honorable Mary Arand
22 Case Management Conference:
VARSITY TUTORS LLC
23 Date: 1/21/2020
Defendant, Time: 10:00 a.m.
24 Department: 9
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
Pursuant to California Rules of Court 3.724 and 3.727, and the Civil Lawsuit Notice in this
case, Plaintiffs Alexander Charles and Henry Mulak (“Plaintiffs”) and Defendant Varsity Tutors LLC
(“Defendant” or “Varsity Tutors”) (collectively with Plaintiffs, the “Parties” or individually, “Party”),
met and conferred on January 3, 2020. The Parties submit this Joint Statement in advance of the Case
Management Conference (“CMC”) scheduled for January 21, 2020 at 10:00 a.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, and for declaratory relief. Neither Party is aware of any
pending related case.
10 Defendant is a technology company. Defendant contends that among other things, Defendant
11 operates an online live learning platform that independent contracted tutors, instructors, and other
12 experts utilize to connect with and/or maintain relationships with the customers/clients with whom they
13 choose to engage through the platform.
14 Plaintiffs seek declaratory relief concerning the Representative Action Waiver contained in the
15 Independent Contractor Agreement that tutors were required to sign as a condition of their relationship
16 with Varsity Tutors. Plaintiffs seek a declaration from the Court that Plaintiffs may maintain a
17 representative PAGA action seeking underpaid wages as penalties for Labor Code violations and that
18 the provision requiring the waiver of representative claims violates California law.
19 Defendant does not contest that Plaintiffs may pursue their PAGA claims in court. Indeed,
20 Defendant contends that this is precisely why the arbitration provisions contained in the Independent
21 Contractor Agreements executed by Plaintiffs expressly exclude PAGA claims from the scope of the
22 arbitration provisions in the Independent Contractor Agreements Plaintiffs executed. As such,
23 Defendant believes that Plaintiffs’ request for declaratory relief is wholly unnecessary.
24 Plaintiffs further allege that Varsity Tutors compensates tutors for time spent during tutoring
25 sessions, but not for time spent traveling to and from tutoring sessions, preparing for tutoring sessions,
26 communicating with students or their parents, or scheduling and bookkeeping related to the tutoring
27 sessions. Plaintiffs allege that tutors are not compensated for gas or expenses incurred in the
28 performance of their duties, are not paid overtime, are not provided with the wage statements required
1
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
under California law, and are not compensated when they are unable to take meal breaks. In addition,
Plaintiffs allege that (a) Varsity Tutors misclassified tutors as independent contractors, (b) Varsity
Tutors’ compensation practices violate the California Labor Code, and (c) Plaintiffs and other tutors are
entitled to civil penalties under PAGA for each Labor Code violation. Plaintiffs contend that the
California Supreme Court case of Dynamex Operations West. V. Superior Court (2018) 4 Cal.5" 903,
establishes that Plaintiffs and other tutors are improperly classified as independent contractors.
Defendant contends that it properly classified all independent contractors who utilized
Defendant’s online platform to connect with tutoring customers/clients. Defendant further contends:
that the independent contracted tutors had complete discretion to decide whether or not to provide
10 services to potential clients on Defendant’s online platform; that Defendant exercised no control over
11 the timing and/or substantive content of Plaintiffs’ tutoring sessions; and that these individuals were
12 free to provide tutoring to clients whom they secured outside of Defendant’s online platform. Indeed,
13 the California Unemployment Insurance Appeals Board issued seven (7) separate decisions holding that
14 Defendant properly classified specific independent contractors, as well as two (2) single-claimant
15 claims that were dismissed by the Employment Development Department. As a result, in June of 2018,
16 the Employment Development Department agreed to treat the individuals who utilized Defendant’s
17 online platform for a three (3) year period from July 1, 2013, to June 30, 2016, including one or more
18 of the Plaintiffs and likely representatives being sought by Plaintiffs, as independent contractors. Put
19 simply, two government agencies have previously determined that Defendant properly classified the
20 individuals at issue as independent contractors.
21 IL. Procedural History and Forthcoming Motion:
22 Defendant answered Plaintiffs’ First Amended Complaint on July 15, 2019. On January 6,
23 2020, the parties filed a joint stipulation and proposed order to designate the case as complex.
24 Defendant does not anticipate filing a motion to remove this case to Federal Court, and the
25 Parties do not anticipate filing other motions at this time.
26 Ii. Discovery and ESI
27 Plaintiffs have served discovery on Defendant and are currently reviewing Defendant’s
28 Responses. The parties anticipate working together to resolve any disputes. The parties also anticipate
2
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
proposing a protective order.
Plaintiffs previously responded to Defendant’s discovery requests. The parties continue to work
together in an effort to mutually resolve all disputes related to Defendant’s discovery requests.
Both Parties have confirmed that they have been preserving potential evidence in the case.
Iv. Alternative Dispute Resolution
Both Parties are open to considering mediation in the future once sufficient information has
been exchanged to allow the Parties to assess the strengths and weaknesses of their respective positions,
and possible damages in the case.
V. Related Cases
10 The Parties are not aware of any related cases.
i] VI Other Topic:
12 The Parties will be available at the Case Management Conference to address any questions the
13 Court may have.
14 DATED: January 6, 2020 Respectfully submitted,
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Counsel for Plaintiffs
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GIBBS LAW GROUP LLP
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18 By
Steven M. Tindall (SBN 187862)
19 smt@classlawgroup.com
Jeffrey Kosbie (SBN 305424)
20 jbk@classlawgroup.com
21 505 14th Street, Suite 1110
Oakland, California 94612
22 Telephone: (510) 350-9700
Fax: (510) 350-9701
23
24 Counsel for Defendant Varsity Tutors LLC
CLARK HILL LLP
25
26 DATED: January 6, 2020 by, Se oo
Rafael G. Nendel-Flores (SBN 223358)
7 RNendelFlores@ClarkHill.com
28 Guillermo M. Tello (SBN 277896)
GTello@ClarkHill.com
3
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
1055 West Seventh Street, Suite 2400
Los Angeles, California 90017
Telephone: (213) 891-9100
Fax: (213) 488-1178
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
CERTIFICATE OF SERVICE
Tam 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 January 6, 2020 I served a copy of the foregoing documents described as follows:
JOINT CASE MANAGEMENT STATEMENT
on the following interested party(ies) in this action:
Rafael Nendel-Flores
10 Guillermo M. Tello
11 CLARK HILL, LLP
1055 West Seventh Street, Suite 2400
12 Los Angeles, CA 90017
mendelflores@clarkhill.com
13
GTello@clarkhill.com
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Attorneys for Defendant VARSITY TUTORS LLC
15
16 [x] BY ELECTRONIC SERVICE: by submitting an electronic version of the document(s) to
One Legal LLC through the user interface at www.onelegal.com.
17
3 BY MAIL: by placing the document(s) listed above for collection and mailing following
18 the firm’s ordinary business practice in a sealed envelope with postage thereon fully prepaid for
deposit in the United States mail at Oakland, California addressed as set forth above.
19
20 ] BY EMAIL: by electronically transmitting a PDF version of above listed documents to
the email addresses set forth above on this date.
21
I declare under penalty of perjury under the laws of the State of California that the above
22
is true and correct.
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24 Executed on January 6, 2020 at Oakland, California.
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CERTIFICATE OF SERVICE
Preview
19CV347249 Santa Clara — Civil System System Electronically Filed Steven M. Tindall (SBN 187862) by Superior Court of CA, smt@classlawgroup.com County of Santa Clara, Jeffrey Kosbie (SBN 305424) on 1/6/2020 4:55 PM jbk@classlawgroup.com GIBBS LAW GROUP LLP Reviewed By: System System 505 14th Street, Suite 1110 Case #19CV347249 Oakland, California 94612 Envelope: 3848676 Telephone: (510) 350-9700 Fax: (510) 350-9701 Attorneys for Plaintiffs ALEXANDER CHARLES and HENRY MULAK Rafael G. Nendel-Flores (SBN 223358) RNendelFlores@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 12 Fax: (213) 488-1178 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 and HENRY Case No. 19CV347249 MULAK, 19 JOINT CASE MANAGEMENT CONFERENCE 20 Plaintiffs, STATEMENT 21 a Honorable Mary Arand 22 Case Management Conference: VARSITY TUTORS LLC 23 Date: 1/21/2020 Defendant, Time: 10:00 a.m. 24 Department: 9 25 26 27 28 JOINT CASE MANAGEMENT CONFERENCE STATEMENT Pursuant to California Rules of Court 3.724 and 3.727, and the Civil Lawsuit Notice in this case, Plaintiffs Alexander Charles and Henry Mulak (“Plaintiffs”) and Defendant Varsity Tutors LLC (“Defendant” or “Varsity Tutors”) (collectively with Plaintiffs, the “Parties” or individually, “Party”), met and conferred on January 3, 2020. The Parties submit this Joint Statement in advance of the Case Management Conference (“CMC”) scheduled for January 21, 2020 at 10:00 a.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, and for declaratory relief. Neither Party is aware of any pending related case. 10 Defendant is a technology company. Defendant contends that among other things, Defendant 11 operates an online live learning platform that independent contracted tutors, instructors, and other 12 experts utilize to connect with and/or maintain relationships with the customers/clients with whom they 13 choose to engage through the platform. 14 Plaintiffs seek declaratory relief concerning the Representative Action Waiver contained in the 15 Independent Contractor Agreement that tutors were required to sign as a condition of their relationship 16 with Varsity Tutors. Plaintiffs seek a declaration from the Court that Plaintiffs may maintain a 17 representative PAGA action seeking underpaid wages as penalties for Labor Code violations and that 18 the provision requiring the waiver of representative claims violates California law. 19 Defendant does not contest that Plaintiffs may pursue their PAGA claims in court. Indeed, 20 Defendant contends that this is precisely why the arbitration provisions contained in the Independent 21 Contractor Agreements executed by Plaintiffs expressly exclude PAGA claims from the scope of the 22 arbitration provisions in the Independent Contractor Agreements Plaintiffs executed. As such, 23 Defendant believes that Plaintiffs’ request for declaratory relief is wholly unnecessary. 24 Plaintiffs further allege that Varsity Tutors compensates tutors for time spent during tutoring 25 sessions, but not for time spent traveling to and from tutoring sessions, preparing for tutoring sessions, 26 communicating with students or their parents, or scheduling and bookkeeping related to the tutoring 27 sessions. Plaintiffs allege that tutors are not compensated for gas or expenses incurred in the 28 performance of their duties, are not paid overtime, are not provided with the wage statements required 1 JOINT CASE MANAGEMENT CONFERENCE STATEMENT under California law, and are not compensated when they are unable to take meal breaks. In addition, Plaintiffs allege that (a) Varsity Tutors misclassified tutors as independent contractors, (b) Varsity Tutors’ compensation practices violate the California Labor Code, and (c) Plaintiffs and other tutors are entitled to civil penalties under PAGA for each Labor Code violation. Plaintiffs contend that the California Supreme Court case of Dynamex Operations West. V. Superior Court (2018) 4 Cal.5" 903, establishes that Plaintiffs and other tutors are improperly classified as independent contractors. Defendant contends that it properly classified all independent contractors who utilized Defendant’s online platform to connect with tutoring customers/clients. Defendant further contends: that the independent contracted tutors had complete discretion to decide whether or not to provide 10 services to potential clients on Defendant’s online platform; that Defendant exercised no control over 11 the timing and/or substantive content of Plaintiffs’ tutoring sessions; and that these individuals were 12 free to provide tutoring to clients whom they secured outside of Defendant’s online platform. Indeed, 13 the California Unemployment Insurance Appeals Board issued seven (7) separate decisions holding that 14 Defendant properly classified specific independent contractors, as well as two (2) single-claimant 15 claims that were dismissed by the Employment Development Department. As a result, in June of 2018, 16 the Employment Development Department agreed to treat the individuals who utilized Defendant’s 17 online platform for a three (3) year period from July 1, 2013, to June 30, 2016, including one or more 18 of the Plaintiffs and likely representatives being sought by Plaintiffs, as independent contractors. Put 19 simply, two government agencies have previously determined that Defendant properly classified the 20 individuals at issue as independent contractors. 21 IL. Procedural History and Forthcoming Motion: 22 Defendant answered Plaintiffs’ First Amended Complaint on July 15, 2019. On January 6, 23 2020, the parties filed a joint stipulation and proposed order to designate the case as complex. 24 Defendant does not anticipate filing a motion to remove this case to Federal Court, and the 25 Parties do not anticipate filing other motions at this time. 26 Ii. Discovery and ESI 27 Plaintiffs have served discovery on Defendant and are currently reviewing Defendant’s 28 Responses. The parties anticipate working together to resolve any disputes. The parties also anticipate 2 JOINT CASE MANAGEMENT CONFERENCE STATEMENT proposing a protective order. Plaintiffs previously responded to Defendant’s discovery requests. The parties continue to work together in an effort to mutually resolve all disputes related to Defendant’s discovery requests. Both Parties have confirmed that they have been preserving potential evidence in the case. Iv. Alternative Dispute Resolution Both Parties are open to considering mediation in the future once sufficient information has been exchanged to allow the Parties to assess the strengths and weaknesses of their respective positions, and possible damages in the case. V. Related Cases 10 The Parties are not aware of any related cases. i] VI Other Topic: 12 The Parties will be available at the Case Management Conference to address any questions the 13 Court may have. 14 DATED: January 6, 2020 Respectfully submitted, 15 Counsel for Plaintiffs 16 GIBBS LAW GROUP LLP 17 18 By Steven M. Tindall (SBN 187862) 19 smt@classlawgroup.com Jeffrey Kosbie (SBN 305424) 20 jbk@classlawgroup.com 21 505 14th Street, Suite 1110 Oakland, California 94612 22 Telephone: (510) 350-9700 Fax: (510) 350-9701 23 24 Counsel for Defendant Varsity Tutors LLC CLARK HILL LLP 25 26 DATED: January 6, 2020 by, Se oo Rafael G. Nendel-Flores (SBN 223358) 7 RNendelFlores@ClarkHill.com 28 Guillermo M. Tello (SBN 277896) GTello@ClarkHill.com 3 JOINT CASE MANAGEMENT CONFERENCE STATEMENT 1055 West Seventh Street, Suite 2400 Los Angeles, California 90017 Telephone: (213) 891-9100 Fax: (213) 488-1178 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 JOINT CASE MANAGEMENT CONFERENCE STATEMENT CERTIFICATE OF SERVICE Tam 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 January 6, 2020 I served a copy of the foregoing documents described as follows: JOINT CASE MANAGEMENT STATEMENT on the following interested party(ies) in this action: Rafael Nendel-Flores 10 Guillermo M. Tello 11 CLARK HILL, LLP 1055 West Seventh Street, Suite 2400 12 Los Angeles, CA 90017 mendelflores@clarkhill.com 13 GTello@clarkhill.com 14 Attorneys for Defendant VARSITY TUTORS LLC 15 16 [x] BY ELECTRONIC SERVICE: by submitting an electronic version of the document(s) to One Legal LLC through the user interface at www.onelegal.com. 17 3 BY MAIL: by placing the document(s) listed above for collection and mailing following 18 the firm’s ordinary business practice in a sealed envelope with postage thereon fully prepaid for deposit in the United States mail at Oakland, California addressed as set forth above. 19 20 ] BY EMAIL: by electronically transmitting a PDF version of above listed documents to the email addresses set forth above on this date. 21 I declare under penalty of perjury under the laws of the State of California that the above 22 is true and correct. 23 24 Executed on January 6, 2020 at Oakland, California. 25 26 27 28 CERTIFICATE OF SERVICE