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BLUMENTHAL NORDREHAUG BHOWMIKDE BLOUW
Norman B. Blumenthal (State Bar #068687)
Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
Victoria B. Rivapalacio(State Bar #27 5115)
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858)551-1223
Facsimile: (858) 551-1232
Attorneys for Plaintiff
CARLOS ESCOBAR
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
CARLOS ESCOBAR, an individual on behalf of Case No.: 17CV308491
himself and on behalf of all persons similarly
tuated JOINTCASE MANAGEMENT
STATEMENT
Plaintiff,
vs. Date: June 14, 2019
Time: 10:00 a.m.
Dept.: 1
ORION SECURITY PATROL, INC., a California Judge: Hon. Brian C. Walsh
Corporation; and Does 1 through 50, Inclusive,
Action filed: April 12, 2017
Defendants. Trial date: None Set
Pursuant to the Complex Civil Guidelines of the Santa Clara County Superior Court and order of
the Court, plaintiff Carlos Escobar (“Plaintiff”) and Defendant Orion Security Patrol (“Defendant”)
(collectively with Plaintiff, the “Parties”) submit this Case Management Statement in regard to Case
Management Conference set for June 14, 2019.
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JOINT CASE MANAGEMENT STATEMENT
SUMMARY OF THE CASE
Plaintiff’s Section
The action was brought by Plaintiff as a putative class action on behalf of himself and all other
exempt Security Guard employees of Defendant in California during the time period beginning
April 12, 2013 through a date designated by the Court (“Putative Class Members”). This action is also
brought as a representative action pursuant to the Private Attorneys General Act (“PAGA”) on behalf of
the State of California for the same alleged violations with respect to himself and all non exempt
Security Guard employees of Defendant in California employed within the time period of April 12, 2016
to the present (“Aggrieved Employees”). Plaintiff’s complaint alleges that he and other Putative Class
Members and Aggrieved Employees were not provided with all legally required off duty meal and rest
periods and did not compensate Plaintiff and Putative Class Members and Aggrieved Employees with
the corresponding meal and rest period premiums. Additionally, Plaintiff contends that he and the
Putative Class Members and Aggrieved Employees uniformly were not provided with accurate itemized
wage statements.
Defendant’s Section
Defendant Yosh Enterprises, Inc., doing business as ORION SECURITY PATROL is the
employer of Plaintiff Carlos Escobar and was erroneously sued herein as Orion Security Patrol, Inc.,
Defendant was recently served with the First Amended Complaint as DOE number 1. The parties need to
address whether any additional stipulations or motions are needed to assist the court in determining who
has appeared in this action and who are the real parties in interest.
Defendant denies any violation of any wage and hour regulations or statute.
Defendant submits that Plaintiff has attempted to classify two distinct classes of employees as
“Security Guards.” In fact, Plaintiff was a not a Security Guard but a Patrol Officer which is a different
category of employee than Defendants’ Security Guards. Patrol Officers work four ten shifts and
patrol routes in company provided vehicles with a different system for reporting meal and rest breaks
than Security Guards. Patrol Officers do not have the same managers as Security Guards who work
eight shifts and only work in one customer location.
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JOINT CASE MANAGEMENT STATEMENT
Defendant contends that the named Plaintiff is not an adequate representative for any class which
might be certified because Plaintiff is a professional Plaintiff with a significant history with the
Blumenthal Nordrehaug Bhowmik De Blouw LLP firm who has represented him in multiple claims
against security firms.
Defendant also contends that Plaintiff would not be an adequate class representative because he had
been terminated for poor performance before, re hired and was already going through progressive
discipline which would have soon ended in termination when he quit without advance notice.
Defendant also Plaintiff cannot show that he personally suffered any violations of wage and hours laws.
SUMMARY OF ORDERS AND ASSOCIATED COMPLIANCE
Plaintiff’s Section
The Court lifted the discovery stay at the Initial Case Management Conference August 25, 2017
and Plaintiff served discovery shortly thereafter. Defendant either failed to respond sufficiently or failed
to respond at all to the requested discovery fter extensive meet and confer efforts, Plaintiff filed three
motions to compel the discovery, to which Defendant failed to oppose. On June , 2018, the Court
granted Plaintiff’s motions in their entirety, except for Plaintiff’s request for monetary sanctions.
The Court ordered Defendant to serve further responses without objection within 20 calendar
days (by June 28, 2018) and to serve all responsive documents within 30 calendar days (by July 8, 2018).
Although Defendant has not requested nor been granted an extension, no responses or documents were
timely provided.On August 13, 2018, Plaintiff filed a Motion for Monetary Sanctions Against
Defendant’s Attorneys and an Order to Show Cause Why Defendant Should Not Be Further Sanctioned.
The Court granted Plaintiff’s Motion for Monetary Sanctions and imposed sanctions in the amount of
$17,350 against Defendant, which was paid.
Defendant’s Section
On July 27, 2017, Defendant exercised is peremptory challenge of the Honorable Thomas E.
Kuhnle, the judge initially assigned to this action, and entered its notice of appearance in this action.
Defendant filed its general denial with affirmative defenses to Plaintiff’s unverified First
Amended Complaint on September 25, 2017 as ordered by the court.
On July 3, 2018, the parties entered a stipulation regarding administration of a Belaire West
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JOINT CASE MANAGEMENT STATEMENT
notice to putative class members and the court entered its order thereon.
Based on the stipulation of the parties, the court entered it order on November 16, 2018 granting
Defendant’s ex parte application for an order regarding confidential information.
On December 4, 2018, the Court issued its order on Plaintiff’s motion for sanctions and ordered
Defendant to pay Plaintiff’s counsel $17,350 in installments. Defendant complied with the Court’s order
DISCOVERY
Status of Discovery
Plaintiff’s Section
The discovery at issue includes Plaintiff’s Form Interrogatories Employment Law, Special
Interrogatories, and Requests for Production of Documents. Plaintiff’s Special Interrogatories and
Requests for Production of Documents include requests for
Time and payroll data for Class Members in electronic format
Defendant’s meal and rest period policies applicable to all Class Members;
itemized wage statements of Class Members;
signed meal break waivers of the Class Members;
the numbers of Class Members;
information and documents Defendant claims support Defendant’s defenses;and
the number of meal and rest period premiums paid,or workweeks worked by Class Members.
Plaintiff’s discovery requests seek information and documents relevant to Plaintiff’s upcoming
motion for class certification and to the PAGA claim, which Plaintiff will need not certify in order to
seek civil penalties for all Labor Code violations suffered by all non exempt employees employed from
April 12, 2016 through the present Williams v. Superior Court, 3 Cal.5th 531 (2017), confirms that no
basis exists to delay discovery of evidence requiredto prosecute a PAGA claim Id. at 548 (“Hurdles that
impede the effective prosecution of representative PAGA actions undermine the Legislature’s
objectives.”). For example, while the Class Members’ electronic time and payroll records will show that
Defendant did, in fact, fail to provide meal breaks to the Class Members and, also, failed to pay meal
period premiums when no meal break was provided. This will be true of the second meal period, as well,
and the time records showing that Class Members worked more than ten hours and did not take a single
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JOINT CASE MANAGEMENT STATEMENT
meal period, corresponding to a failure to pay any meal period premium, will both evidence the truth of
Plaintiff’s claims, but, importantly, will show that the experience was common among and across the
Class Members and that the Court will be able to manage a trialand identify the Class Members and
their damages effectively when the case proceeds to trial as a class action.
The Class Members’ contact information was produced to Plaintiff on or around September 20,
2018, after the conclusion of aBelaire Westnotice out procedure
Plaintiff has taken the deposition of Defendant’s Person Most Knowledgeable (“PMK”), but the
PMK was designated for only a portion of the categories noticed. Therefore, a second PMK is required.
At the last hearing, the Court Ordered the parties to meet and confer on a second PMK date. The Parties
agreed on a date, which was presented to the Court. That date subsequently came off calendar due to
scheduling issues and Defense Counsel’s engagement in another trial. Plaintiff is awaiting dates of
availability for the second PMK deposition.
Defendant is now in partial compliance with the Court’s prior discovery Order. There are still
certain discovery requests which remain outstanding. Plaintiff is working with Defendant to obtain the
discovery it needs to depose Defendant’s PMK and potentially engage in a second mediation.
Defendant’s Section
Written discovery was propounded on Defendant to which Defendant interposed objections to
anything that would disclose personal identities or contact information to Plaintiff. Some written
discovery relating to Plaintiff including his complete personnel file, his employment records and wage
and hour statements, disciplinary records and the like as well as sample employment forms used by
Defendant in blank were provided to Plaintiff.
On June 12, 2018, the court entered it motion compelling discovery but subject to a Belaire West
notice to be worked out between the parties. This was the impetus for the successful stipulation and
order mentioned above which was e filed on July 3, 2018.
Pursuant to the stipulation, the parties successfully worked on the wording to be used for a
Belaire West notice to be served and administered by ILYM Group Inc., a firm located in Tustin,
California recommended by Plaintiff.
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JOINT CASE MANAGEMENT STATEMENT
ILYM Group predicted that the “final” report would show a tentative class size of 845. However,
after further opt out notices were received, the putative class was 800 members. In response to additional
new requests for admissions and new special interrogatories served by Plaintiff, Defendant served its
responses to requests for admissions, Set Two, and responses to special interrogatories, Set Two, on
Friday, November 16, 2018. In response to the special interrogatories, Defendant provided the name,
address, telephone number (if available) and whether each employee worked either as a Patrol Officer or
a Security Guard for Defendant. Defendant also identified the current employees. This information was
provided based on our understanding of the June 12, 2018 order to provide additional information only
applied to those employees who failed to opt out pursuant to the Belaire West notice.
On November 13, 2018, Plaintiff served Defendants with new requests for production of
documents, Set Two, seeking documents for categories 36 to 46.
On November 6, 2018, Defendant produced its Controller Lita Ortega for an all day deposition as
Defendant’s first Person Most Knowledgeable which Plaintiff had originally scheduled but postponed
three times. Plaintiff asked for Defendant’s PMK for some 35 categories. After Lita Ortega’s deposition,
Plaintiff decided to wait before deposing Shanon Box or Yosh Gahramani, two other witnesses
identified by Defendant as its PMKs.
Plaintiff and Defendant then addressed the formatting issues about electronic stored information
requested by Plaintiff. Plaintiff’s position was that regardless of the program, Defendant should be able
to produce required information in Excel spreadsheet format. Defendant explained that it did not have
that capability and offered Plaintiff’s experts the opportunity to access its electronically stored
information so that Plaintiff could conduct its own search of Defendant’s database. The Parties and their
experts even had two telephone conferences in which Defendant’s experts explained to Plaintiff’s
experts what could and could not be done.
laintiff then offered a compromise resolution on discovery. If Defendant could produce in Excel
format a spreadsheet showing each putative class members’ employment start and stop date, additional
discovery may not be necessary (including the PMK depositions) because Plaintiff’s experts could use
that Excel spreadsheet to calculate Plaintiff’s damages for purposes of settlement discussions.
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JOINT CASE MANAGEMENT STATEMENT
Defendant accepted Plaintiff’s proposal and with much labor produced an Excel spreadsheet that
contained all the data that Plaintiff believed was necessary to complete its damage calculation. That
damage calculation has now been exchanged between the parties. Defendant understands that Plaintiff
now wishes to attempt a second mediation which means that additional discovery, including the PMK
depositions, would not be needed, unless settlement discussions fail.
Discovery PlanPlaintiff’s Section
Plaintiff plans to take the PMK Deposition for the Security Guards” and the “Patrol
Officers.” Plaintiff aims to take both ofthese PMK Depositions in the next 60 days.Plaintiff
is waiting for Defendant to provide deposition availability.
The foregoing PMK Depositions will likely result in additional written discovery, which will
be propounded shortly thereafter.
Plaintiff will seek to obtain all time and payroll data in searchable, spreadsheet format in the
next 30 days, as Ordered by this Court on June 8, 2018.Plaintiff agreed to table that issue
while the Parties attempted to mediate this matter. If, however, mediation is not going
forward, Plaintiff will need this data to prosecute his case and move for class certification.
Absent an additional extension, Plaintiff will move to compel further responses to Requests
for Production of Documents, Sets 2 and 3, the deadlinefor which is currently June 21, 2019.
Defendant’s Section:
Defendant intends this week to send out to Plaintiff form interrogatories General, Form
interrogatoriesEmployment, Requests for Admissions, Request for Production of
Documents and Special Interrogatories. Defendant intends to take the deposition of Plaintiff
in mid July 2019.
MEDIATION
As Ordered by the Court at the May 10, 2019 case management conference, the Parties have
attempted to meet and confer to find a mutually agreeable mediator. The Parties were unable to find a
mutually agreeable mediator. Therefore, per the Court’s Order, below is a list of six mediators, half of
which are selected by Plaintiff and half of which are selected by Defendant (in no particular order);
Jeffrey Ross
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JOINT CASE MANAGEMENT STATEMENT
on. David A. Garcia, ret.
Irma Gonzalez
Tamara Lopez
David Rotman
Hon. John Flaherty, ret.
SIGNIFICANT PROCEDURAL AND PRACTICAL PROBLEMS
Plaintiff’s Section
Plaintiff anticipate the practical problems associated with procuring the discovery necessary to
litigate this action. Defendant’s prior failure to comply with fundamental discovery obligations and the
Court’s Orders caus significant delay to Plaintiff Now that discovery has progressed, Plaintiff needs a
second (and possibl a third) PMK deposition in order to obtain the information needed to prosecute this
case.
Defendant’s Section
Defendant does not have the financial wherewithal to agree to the amounts set forth in Plaintiff’s
damage calculation, but can conceive that settlement is still possible if Plaintiff accepts Defendant’s
financial condition.
VI. PROPOSED TIMELINE
Plaintiff’s Section
Plaintiff proposes that the Court set a further Case Management Conference in ninety (90) days
Plaintiff respectfully submits that, until Plaintiff has procured this discovery, as ordered by the Court, it
is premature to set a class certification briefing schedule and hearing.
Defendant’s Section
Defendant agrees that a motion for class certification is premature.
VII. OTHER SPECIAL CONSIDERATIONS
Plaintiff’s Sectio
The Parties attended private mediation on February 8, 2018 It was unsuccessful.The Parties are
exploring the possibility of as second mediation.
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JOINT CASE MANAGEMENT STATEMENT
Defendant’s Section
Mr. Flemate’s withdrawal as attorney of record is no longer contemplated as necessary.
Defendant is considering Plaintiff’s offer of a second mediation either before Judge Cahill, or any new
mediator deemed acceptable to the parties.
DATED: June 7 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW
Jeffrey S. Herman
Attorneys for Plaintiff
DATED: June 7 LAW OFFICES OF EUGENE FLEMATE
Eugene Flemate
Eugene Flemate
Attorneys for Defendant
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JOINT CASE MANAGEMENT STATEMENT
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BLUMENTHAL NORDREHAUG BHOWMIKDE BLOUW Norman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) Victoria B. Rivapalacio(State Bar #27 5115) 2255 Calle Clara La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-1232 Attorneys for Plaintiff CARLOS ESCOBAR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA CARLOS ESCOBAR, an individual on behalf of Case No.: 17CV308491 himself and on behalf of all persons similarly tuated JOINTCASE MANAGEMENT STATEMENT Plaintiff, vs. Date: June 14, 2019 Time: 10:00 a.m. Dept.: 1 ORION SECURITY PATROL, INC., a California Judge: Hon. Brian C. Walsh Corporation; and Does 1 through 50, Inclusive, Action filed: April 12, 2017 Defendants. Trial date: None Set Pursuant to the Complex Civil Guidelines of the Santa Clara County Superior Court and order of the Court, plaintiff Carlos Escobar (“Plaintiff”) and Defendant Orion Security Patrol (“Defendant”) (collectively with Plaintiff, the “Parties”) submit this Case Management Statement in regard to Case Management Conference set for June 14, 2019. -1- __________________________________________________________________________________________________________________________ JOINT CASE MANAGEMENT STATEMENT SUMMARY OF THE CASE Plaintiff’s Section The action was brought by Plaintiff as a putative class action on behalf of himself and all other exempt Security Guard employees of Defendant in California during the time period beginning April 12, 2013 through a date designated by the Court (“Putative Class Members”). This action is also brought as a representative action pursuant to the Private Attorneys General Act (“PAGA”) on behalf of the State of California for the same alleged violations with respect to himself and all non exempt Security Guard employees of Defendant in California employed within the time period of April 12, 2016 to the present (“Aggrieved Employees”). Plaintiff’s complaint alleges that he and other Putative Class Members and Aggrieved Employees were not provided with all legally required off duty meal and rest periods and did not compensate Plaintiff and Putative Class Members and Aggrieved Employees with the corresponding meal and rest period premiums. Additionally, Plaintiff contends that he and the Putative Class Members and Aggrieved Employees uniformly were not provided with accurate itemized wage statements. Defendant’s Section Defendant Yosh Enterprises, Inc., doing business as ORION SECURITY PATROL is the employer of Plaintiff Carlos Escobar and was erroneously sued herein as Orion Security Patrol, Inc., Defendant was recently served with the First Amended Complaint as DOE number 1. The parties need to address whether any additional stipulations or motions are needed to assist the court in determining who has appeared in this action and who are the real parties in interest. Defendant denies any violation of any wage and hour regulations or statute. Defendant submits that Plaintiff has attempted to classify two distinct classes of employees as “Security Guards.” In fact, Plaintiff was a not a Security Guard but a Patrol Officer which is a different category of employee than Defendants’ Security Guards. Patrol Officers work four ten shifts and patrol routes in company provided vehicles with a different system for reporting meal and rest breaks than Security Guards. Patrol Officers do not have the same managers as Security Guards who work eight shifts and only work in one customer location. __________________________________________________________________________________________________________________________ JOINT CASE MANAGEMENT STATEMENT Defendant contends that the named Plaintiff is not an adequate representative for any class which might be certified because Plaintiff is a professional Plaintiff with a significant history with the Blumenthal Nordrehaug Bhowmik De Blouw LLP firm who has represented him in multiple claims against security firms. Defendant also contends that Plaintiff would not be an adequate class representative because he had been terminated for poor performance before, re hired and was already going through progressive discipline which would have soon ended in termination when he quit without advance notice. Defendant also Plaintiff cannot show that he personally suffered any violations of wage and hours laws. SUMMARY OF ORDERS AND ASSOCIATED COMPLIANCE Plaintiff’s Section The Court lifted the discovery stay at the Initial Case Management Conference August 25, 2017 and Plaintiff served discovery shortly thereafter. Defendant either failed to respond sufficiently or failed to respond at all to the requested discovery fter extensive meet and confer efforts, Plaintiff filed three motions to compel the discovery, to which Defendant failed to oppose. On June , 2018, the Court granted Plaintiff’s motions in their entirety, except for Plaintiff’s request for monetary sanctions. The Court ordered Defendant to serve further responses without objection within 20 calendar days (by June 28, 2018) and to serve all responsive documents within 30 calendar days (by July 8, 2018). Although Defendant has not requested nor been granted an extension, no responses or documents were timely provided.On August 13, 2018, Plaintiff filed a Motion for Monetary Sanctions Against Defendant’s Attorneys and an Order to Show Cause Why Defendant Should Not Be Further Sanctioned. The Court granted Plaintiff’s Motion for Monetary Sanctions and imposed sanctions in the amount of $17,350 against Defendant, which was paid. Defendant’s Section On July 27, 2017, Defendant exercised is peremptory challenge of the Honorable Thomas E. Kuhnle, the judge initially assigned to this action, and entered its notice of appearance in this action. Defendant filed its general denial with affirmative defenses to Plaintiff’s unverified First Amended Complaint on September 25, 2017 as ordered by the court. On July 3, 2018, the parties entered a stipulation regarding administration of a Belaire West __________________________________________________________________________________________________________________________ JOINT CASE MANAGEMENT STATEMENT notice to putative class members and the court entered its order thereon. Based on the stipulation of the parties, the court entered it order on November 16, 2018 granting Defendant’s ex parte application for an order regarding confidential information. On December 4, 2018, the Court issued its order on Plaintiff’s motion for sanctions and ordered Defendant to pay Plaintiff’s counsel $17,350 in installments. Defendant complied with the Court’s order DISCOVERY Status of Discovery Plaintiff’s Section The discovery at issue includes Plaintiff’s Form Interrogatories Employment Law, Special Interrogatories, and Requests for Production of Documents. Plaintiff’s Special Interrogatories and Requests for Production of Documents include requests for Time and payroll data for Class Members in electronic format Defendant’s meal and rest period policies applicable to all Class Members; itemized wage statements of Class Members; signed meal break waivers of the Class Members; the numbers of Class Members; information and documents Defendant claims support Defendant’s defenses;and the number of meal and rest period premiums paid,or workweeks worked by Class Members. Plaintiff’s discovery requests seek information and documents relevant to Plaintiff’s upcoming motion for class certification and to the PAGA claim, which Plaintiff will need not certify in order to seek civil penalties for all Labor Code violations suffered by all non exempt employees employed from April 12, 2016 through the present Williams v. Superior Court, 3 Cal.5th 531 (2017), confirms that no basis exists to delay discovery of evidence requiredto prosecute a PAGA claim Id. at 548 (“Hurdles that impede the effective prosecution of representative PAGA actions undermine the Legislature’s objectives.”). For example, while the Class Members’ electronic time and payroll records will show that Defendant did, in fact, fail to provide meal breaks to the Class Members and, also, failed to pay meal period premiums when no meal break was provided. This will be true of the second meal period, as well, and the time records showing that Class Members worked more than ten hours and did not take a single __________________________________________________________________________________________________________________________ JOINT CASE MANAGEMENT STATEMENT meal period, corresponding to a failure to pay any meal period premium, will both evidence the truth of Plaintiff’s claims, but, importantly, will show that the experience was common among and across the Class Members and that the Court will be able to manage a trialand identify the Class Members and their damages effectively when the case proceeds to trial as a class action. The Class Members’ contact information was produced to Plaintiff on or around September 20, 2018, after the conclusion of aBelaire Westnotice out procedure Plaintiff has taken the deposition of Defendant’s Person Most Knowledgeable (“PMK”), but the PMK was designated for only a portion of the categories noticed. Therefore, a second PMK is required. At the last hearing, the Court Ordered the parties to meet and confer on a second PMK date. The Parties agreed on a date, which was presented to the Court. That date subsequently came off calendar due to scheduling issues and Defense Counsel’s engagement in another trial. Plaintiff is awaiting dates of availability for the second PMK deposition. Defendant is now in partial compliance with the Court’s prior discovery Order. There are still certain discovery requests which remain outstanding. Plaintiff is working with Defendant to obtain the discovery it needs to depose Defendant’s PMK and potentially engage in a second mediation. Defendant’s Section Written discovery was propounded on Defendant to which Defendant interposed objections to anything that would disclose personal identities or contact information to Plaintiff. Some written discovery relating to Plaintiff including his complete personnel file, his employment records and wage and hour statements, disciplinary records and the like as well as sample employment forms used by Defendant in blank were provided to Plaintiff. On June 12, 2018, the court entered it motion compelling discovery but subject to a Belaire West notice to be worked out between the parties. This was the impetus for the successful stipulation and order mentioned above which was e filed on July 3, 2018. Pursuant to the stipulation, the parties successfully worked on the wording to be used for a Belaire West notice to be served and administered by ILYM Group Inc., a firm located in Tustin, California recommended by Plaintiff. __________________________________________________________________________________________________________________________ JOINT CASE MANAGEMENT STATEMENT ILYM Group predicted that the “final” report would show a tentative class size of 845. However, after further opt out notices were received, the putative class was 800 members. In response to additional new requests for admissions and new special interrogatories served by Plaintiff, Defendant served its responses to requests for admissions, Set Two, and responses to special interrogatories, Set Two, on Friday, November 16, 2018. In response to the special interrogatories, Defendant provided the name, address, telephone number (if available) and whether each employee worked either as a Patrol Officer or a Security Guard for Defendant. Defendant also identified the current employees. This information was provided based on our understanding of the June 12, 2018 order to provide additional information only applied to those employees who failed to opt out pursuant to the Belaire West notice. On November 13, 2018, Plaintiff served Defendants with new requests for production of documents, Set Two, seeking documents for categories 36 to 46. On November 6, 2018, Defendant produced its Controller Lita Ortega for an all day deposition as Defendant’s first Person Most Knowledgeable which Plaintiff had originally scheduled but postponed three times. Plaintiff asked for Defendant’s PMK for some 35 categories. After Lita Ortega’s deposition, Plaintiff decided to wait before deposing Shanon Box or Yosh Gahramani, two other witnesses identified by Defendant as its PMKs. Plaintiff and Defendant then addressed the formatting issues about electronic stored information requested by Plaintiff. Plaintiff’s position was that regardless of the program, Defendant should be able to produce required information in Excel spreadsheet format. Defendant explained that it did not have that capability and offered Plaintiff’s experts the opportunity to access its electronically stored information so that Plaintiff could conduct its own search of Defendant’s database. The Parties and their experts even had two telephone conferences in which Defendant’s experts explained to Plaintiff’s experts what could and could not be done. laintiff then offered a compromise resolution on discovery. If Defendant could produce in Excel format a spreadsheet showing each putative class members’ employment start and stop date, additional discovery may not be necessary (including the PMK depositions) because Plaintiff’s experts could use that Excel spreadsheet to calculate Plaintiff’s damages for purposes of settlement discussions. __________________________________________________________________________________________________________________________ JOINT CASE MANAGEMENT STATEMENT Defendant accepted Plaintiff’s proposal and with much labor produced an Excel spreadsheet that contained all the data that Plaintiff believed was necessary to complete its damage calculation. That damage calculation has now been exchanged between the parties. Defendant understands that Plaintiff now wishes to attempt a second mediation which means that additional discovery, including the PMK depositions, would not be needed, unless settlement discussions fail. Discovery PlanPlaintiff’s Section Plaintiff plans to take the PMK Deposition for the Security Guards” and the “Patrol Officers.” Plaintiff aims to take both ofthese PMK Depositions in the next 60 days.Plaintiff is waiting for Defendant to provide deposition availability. The foregoing PMK Depositions will likely result in additional written discovery, which will be propounded shortly thereafter. Plaintiff will seek to obtain all time and payroll data in searchable, spreadsheet format in the next 30 days, as Ordered by this Court on June 8, 2018.Plaintiff agreed to table that issue while the Parties attempted to mediate this matter. If, however, mediation is not going forward, Plaintiff will need this data to prosecute his case and move for class certification. Absent an additional extension, Plaintiff will move to compel further responses to Requests for Production of Documents, Sets 2 and 3, the deadlinefor which is currently June 21, 2019. Defendant’s Section: Defendant intends this week to send out to Plaintiff form interrogatories General, Form interrogatoriesEmployment, Requests for Admissions, Request for Production of Documents and Special Interrogatories. Defendant intends to take the deposition of Plaintiff in mid July 2019. MEDIATION As Ordered by the Court at the May 10, 2019 case management conference, the Parties have attempted to meet and confer to find a mutually agreeable mediator. The Parties were unable to find a mutually agreeable mediator. Therefore, per the Court’s Order, below is a list of six mediators, half of which are selected by Plaintiff and half of which are selected by Defendant (in no particular order); Jeffrey Ross __________________________________________________________________________________________________________________________ JOINT CASE MANAGEMENT STATEMENT on. David A. Garcia, ret. Irma Gonzalez Tamara Lopez David Rotman Hon. John Flaherty, ret. SIGNIFICANT PROCEDURAL AND PRACTICAL PROBLEMS Plaintiff’s Section Plaintiff anticipate the practical problems associated with procuring the discovery necessary to litigate this action. Defendant’s prior failure to comply with fundamental discovery obligations and the Court’s Orders caus significant delay to Plaintiff Now that discovery has progressed, Plaintiff needs a second (and possibl a third) PMK deposition in order to obtain the information needed to prosecute this case. Defendant’s Section Defendant does not have the financial wherewithal to agree to the amounts set forth in Plaintiff’s damage calculation, but can conceive that settlement is still possible if Plaintiff accepts Defendant’s financial condition. VI. PROPOSED TIMELINE Plaintiff’s Section Plaintiff proposes that the Court set a further Case Management Conference in ninety (90) days Plaintiff respectfully submits that, until Plaintiff has procured this discovery, as ordered by the Court, it is premature to set a class certification briefing schedule and hearing. Defendant’s Section Defendant agrees that a motion for class certification is premature. VII. OTHER SPECIAL CONSIDERATIONS Plaintiff’s Sectio The Parties attended private mediation on February 8, 2018 It was unsuccessful.The Parties are exploring the possibility of as second mediation. __________________________________________________________________________________________________________________________ JOINT CASE MANAGEMENT STATEMENT Defendant’s Section Mr. Flemate’s withdrawal as attorney of record is no longer contemplated as necessary. Defendant is considering Plaintiff’s offer of a second mediation either before Judge Cahill, or any new mediator deemed acceptable to the parties. DATED: June 7 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW Jeffrey S. Herman Attorneys for Plaintiff DATED: June 7 LAW OFFICES OF EUGENE FLEMATE Eugene Flemate Eugene Flemate Attorneys for Defendant __________________________________________________________________________________________________________________________ JOINT CASE MANAGEMENT STATEMENT