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CHRIS BAKER, State Bar No. 181557
cbaker@bakerlp.com
F
DEBORAH SCHWARTZ, State Bar No. 208934 Electronically
cbaker@bakerlp.com
BAKER CURTIS & SCHWARTZ, P.C. by Superior Court of California
44 Montgomery Street, Suite 3520 County of San Mateo
San Francisco, CA 94104 4/26/2018
Telephone: (415) 433-1064
Fax: (415) 366-2525
c t words
Attorneys for [Proposed] Intervenor Deputy Clerk
PAOLA CORREA
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA.
10 COUNTY OF SAN MATEO
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12 RACHEL MONIZ, on behalf
of the State of Case No. 17CIV01736
California and aggrieved employees,
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BAKER REPLY DECLARATION IN
14 Plaintiff, SUPPORT OF CORREA’S MOTION
FOR LEAVE TO INTERVENE
15 vs.
Assigned for All Purposes to
16 ADECCO USA, INC., and DOES 1-50, inclusive > Hon. Marie S. Weiner
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Defendants. DATE: May 3, 2018
18 TIME: 2:00 PM
DEPT.: 2
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Complaint Filed: April 18, 2017
20 Trial Date: September 4, 2018
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23 I, Chris Baker, declare as follows:
24 1 Iam counsel for Paola Correa and have personal knowledge of the following facts.
25 2 The parties in Doev. Google et. al. (including Adecco) first contemplated a
26 mediation of that case in early January 2018. They retained David Rotman as the mediator. A
27 copy of the Doe Court’s order referencing this mediation is attached as Exhibit 1.
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BAKER REPLY DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE
3 Adecco subsequently withdrew from the Rotman mediation, and Adecco, Doe and
Moniz agreed to a global mediation with Mark Rudy on April 3, 2018. A copy of the
correspondence confirming this global mediation is attached as Exhibit 2.
4. Following a dispute concerning the cost of mediation and lunch, on March 7, 2018,
Moniz and Adecco called off the global mediation. The events leading up to this dispute are
described in Correa’s opposition to Moniz’s ex parte application to the Doe Court, which is
attached as Exhibit 3 (without the exhibits).
5 Following the communications between Moniz’s counsel and Adecco’s prior-
counsel (Latham & Watkins) canceling the global mediation, Adecco’s current counsel (Epstein
10 Becker) and Correa discussed and agreed to a bilateral mediation of the Doe case with Mark Rudy
11 on the previously-set April 3, 2018 date.
12 6 On March 21, 2018, Correa notified Adecco and Moniz of her intent to intervene in
13 this case and proposed hearing dates on which this Court stated it was available. In response,
14 Moniz declined to state her availability, though she inquired as to Correa’s grounds for
15 intervention, which I provided. A copy of the email thread detailing this correspondence is
16 attached as Exhibit 4.
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Correa and Adecco mediated the Doe matter on April 3, 2018. The mediation was
18 unsuccessful, though settlement discussions continue. Also on April 3, 2018, Adecco’s counsel
19 provided me with a copy of Adecco’s March 5, 2018 correspondence concerning its position on
20 the “scope” issue (which is set forth as Exhibit 3 to my original declaration). It was not until I
21 received this correspondence that I learned Moniz had apparently agreed to not amend her PAGA
22 complaint or PAGA notice as a condition of her individual settlement.
23 8 As of the time of the filing ofthis reply, my office has still not received a copy of
24 Moniz’s opposition through the mail. I did receive an email on April 24, 2018 from
25 service@onelegal.com that permitted me to download the opposition, but this email easily could
26 have been missed. My office was not on the lookout for electronic service in this case because we
27 had never agreed to such service. Moreover, my office receives a high volume of emails each day
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BAKER REPLY DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE
and a numerous emails from One Legal, many of which concern confirmation or status updates
regarding our own filings (as well as billing information and spam).
I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct. Executed this 26th day of April, 2018, in San ‘ancisco,
California.
ARC
er
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BAKER REPLY DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE
Exhibit 1
A BERVICS
a 61580828
Jan 17 2018
03:36PM
8 Sar mg
San Francisco County Suserior Court
ZACHARY P. HUTTON (Cal. State Bar No. 234737)
PAUL HASTINGS LLP JAN 17 2018
55 Second Street
Twenty-Fourth Floor
San Francisco, California 94105-3441
Telephone: 1(415) 856-7000
Facsimile: 1(415) 856-7100
BY: eR
OF TAR
CLERK OF T)HE. COURT
japuty Glen
achhutton@paulhastings.com
CAMERON W. FOX (Cal. State Bar No, 218116)
ANKUSH DHUPAR (Cal. State Bar No. 307689)
PAUL HASTINGS LLP
515 South Flower Street, 25th Floor
Los Angeles, California 90071
Telephone: 1(213) 683-6000
Facsimile; 1(213) 627-0705
eronfox! aulhastings.com
ar
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Attorneys for Defendants
it GOOGLE INC. and ALPHABET INC.
12 [ADDITIONAL COUNSEL ON FOLLOWING PAGE]
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SUPERIOR COURT OF CALIFORNIA.
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COUNTY OF SAN FRANCISCO,
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JOHN DOE, DAVID GUDEMAN, and. NO. CGC-16-556034
7 PAOLA CORREA on behalf of the State of
California and aggrieved employees, JOINT STIPULATION STAYING
18 PROCEEDINGS PENDING PRIVATE
Plaintiffs, MEDIATION AND (2EPSSLD] ORDER
19
vs,
20 Department: 304 (COMPLEX)
GOOGLE, INC., ALPHABET, INC., Judge: Hon. Curtis L.A. Karnow
ai ADECCO USA INC., ADECCO GROUP
NORTH AMERICA and ROES 1 through 10, Complaint File: December 20, 2016
22 Trial Date: Not Set
Defendants.
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JOINT STIPULATION STAYING PROCEEDINGS AND #R6POSED] ORDER
LBGAL_US_W # 927638962
CHRIS BAKER (Cal. State Bar No. 181557)
DEBORAH SCHWARTZ (Cal. State Bar No. 208934)
BAKER CURTIS & SCHWARTZ, P.C.
44 Montgomery Street, Suite 3520
San Francisco, Califormia 94104
Telephone: 1(415) 433-1064
Facsimile: 1(415) 366-2525
ebaker@balerlp.com
dschwart: bakerlp.com E
Attorneys for Plaintiffs
JOHN DOE; DAVID GUDEMAN,
AND PAOLA CORREA
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JOINT STIPULATION STAYING PROCEEDINGS AND [PROPOSED] ORDER
LEGAL_US_W # 92763896.2
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STIPULATION
Defendants Google Inc,! and Alphabet Inc. (collectively Google”) and Plaintiffs John
Doe, David Gudeman, and Paola Correa (collectively “the Parties”), by and through their
respective counsel of record, hereby stipulate as follows:
1 Plaintiffs and Google have agreed to submit this action to private mediation on
March 22, 2018 before David Rotman.
2. Adecco has agreed to join this mediation, but is not a party to this stipulation.
3 The parties in the related Cassel v. Google case, currently pending in Santa Clara
County Superior Court, have also agreed to join this mediation, but are not parties to this
10 stipulation.
it 4. The parties are actively meeting and conferring regarding the exchange of
12 information that Plaintiffs believe is necessary to assess the claims for mediation.
13 5 In the meantime, Google and Plaintiffs have agreed to stay all matters between
14 them, including discovery deadlines and the discovery that is subject to the Court’s December 22,
15 2017 Order. This stay shall also specifically apply to any additional formal discovery served by
16 Google or Plaintiffs during the period of the stay. This stay shall also apply to any upcoming
17 deadlines to move to compel with respect to outstanding discovery.
18 6 Either Plaintiffs or Google may lift the stay by filing a notice with the Court that
19 the stay should be lifted. Seven days after the filing of such notice, all deadlines, including
20 discovery deadlines, will, and without further order of the Court, again begin to run,
21 7. Following the mediation, Google and Plaintiffs will report back promptly to the
22 Court on the result of mediation and the status of the case.
23 8, In light of this Stipulation and [Proposed] Order, Google and Plaintiffs request that
24 the Court continue the upcoming tase management conference, currently scheduled for February
25 13, 2018, to the month of April.
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28 ' Google represents that, effective October 1, 2017, Google Inc. became Google LLC.
JOINT STIPULATION STAYING PROCEEDINGS AND PROPOSED} ORDER
LEGAL_US_W # 927638962
-- — — — ed
1 9 This stay does not apply to any proceedings that might occur in the Court of
2 Appeal, or matters between Plaintiffs and Adecco.
DATED: January, 2018 PAUL HASTINGS LLP
ZACHARY P. HUTTON
CAMERON W. FOX
ANKUSH DHUPAR
By: Ld ef ZACHARY P. Hi ‘ON
Attorneys for Defendants
GOOGLE INC, and ALPHABET INC,
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DATED: January 2018 BAKER CURTIS & SCHWARTZ, P.C.
i CHRIS BAKER
DEBO! SCHWARTZ
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14 By:
CHRIS BAKER
1s Attorneys for Plaintiffs
JOHN DOE, DAVID GUDEMAN, AND PAOLA
16 CORREA
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{PROBPOSERY ORDER STAYING PROCEEDING PENDING PRIVATE MEDIATION
LEGAL_US_W # 927632962
—
(PROVOSED] ORDER
On the stipulation of Defendants Google Inc. and Alphabet Inc. (collectively “Google”)
and Plaintiffs John Doe, David Gudeman, and Paola Correa, and good cause appearing therefor,
IT IS ORDERED that all matters between Plaintiffs and Google, including discovery
deadlines, are stayed in accordance with the parties’ stipulation, which is incorporated by
reference into this Order. The status conference currently set for February 13, 2018 is continued.
oe mn,
to A phe 10 tol joi int case management confeience statement Shall be filed with the
Court no later then Aya 6. 2or?
Dated: “yy { F 2018 ‘
10 CURMIS E.A. ~—
Judge of the Superior Court
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JOINT STIPULATION STAYING PROCEEDINGS AND #PR6POSBH] ORDER
LEGAL US W # 927638962
-- —--
Exhibit 2
MEDIATION OFFICES OF
Mark S. Rupy,A PROFESSIONAL CORPORATION
351 CALIFORNIA STREET, SUITE 700
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE: (415) 982-1457
FACSIMILE: (415) 434-0513
March 6, 2018
For ALL MEDIATION INQUIRIES:
JANET CLARK, LEGAL ASST
jclark@rezlaw.com
(415) 982-1457
Carolyn H. Cottrell John D. Winer
Kyle G. Bates Winer, McKenna & Burritt, LLP
David C. Leimbach 1999 Harrison Street, Suite 600
Schneider Wallace Cottrell Konecky Wotkyns Oakland, CA 94612
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Christopher D. Baker Linda M. Inscoe
Deborah R. Schwartz Christina P. Teeter
Baker, Curtis & Schwartz, PC Latham & Watkins, LLP
44 Montgomery Street, Suite 3520 505 Montgomery Street, Suite 2000
San Francisco, CA 94104 San Francisco, CA 94111
Steven R. Blackbum
Matthew A. Goodin
Epstein Becker & Green, PC
655 Montgomery Street, Suite 1150
San Francisco, CA. 94111
Re: Adecco Cases
Our File No.: 11727-001
Dear Counsel:
Mediation in the above matter is confirmed as follows:
Date: April 3, 2018
Time: 9:00 a.m.
Location: Law Offices of Latham & Watkins, LLP
505 Montgomery Street, Suite 2000
San Francisco, California
Mediation Fees Must Be Received by: March 15, 2018
Mediation Briefs Must Be Received by: March 27, 2018
Counsel re: Adecco Cases
March 6, 2018
Page 2
The charge for providing mediation services is a non-refundable fee indicated below. An
invoice is enclosed herewith. If more than two hours post mediation are spent on this matter, the
parties will be charged at my usual hourly rate of $900 per hour. Please make checks payable
to: Mark S. Rudy, A Professional Corporation (F ederal Tax I.D. Number 94-3010633). In
addition, Wire/ACH instructions are attached. Please include the statement number on the
transaction and email Janet Clark jclark@ rezlaw.com with the confirmation.
Per Diem Rates for Mediation
Individual Cases $10,000
Multi-Plaintiff Cases $12,000
Class Actions $15,000
If a matter has five or more single plaintiffs, the class action rate is charged. On April 1,
2018, mediation rates will be: $15,000 fora class or PAGA action. Single and multi-plaintiff
rates will remain the same.
In order to facilitate a successful resolution of this case, it is imperative that you take
every step possible to comply with the following:
. Each party must have a representative present who has authority to resolve
the dispute;
Since the goal is to obtain an enforceable agreement upon completion of the
mediation session, it is strongly recommended that the employer's
representative provide plaintiff's counsel with a specimen general release and
settlement agreement which the employee will be required to execute
assuming that the mediation is successful. I have found that arguing over the
terms and conditions of such an agreement and release has, in some cases,
resulted in the failure of the mediation process. If the employer is unwilling to
provide such a specimen release and general settlement agreement, then the
employee's attorney should advise the client that such a written agreement,
releasing all known or unknown claims will be required.
Ifa pre-mediation telephone conference is necessary, that session should be
set up by the requesting party a minimum of ten days prior to the mediation
date. I typically do not schedule a pre-mediation conference prior to the start
of the session. However, if you believe a pre-mediation conference would be
beneficial, please contact my legal assistant to arrange an early morning call
with either one or both sides.
Counsel re: Adecco Cases
March 6, 2018
Page 3
It is my practice to carefully review, prior to the mediation session, the mediation briefs
and attachments that are provided to me. Therefore, it is requested that those documents
concisely set forth the facts, legal issues, damages claimed, resolution sought, and any other
relevant material.
I would like to receive mediation briefs from each party on or before March 27, 2018
and, if possible, not to exceed fifteen (15) pages in length. Mediation briefs can be emailed to
me directly at msr@rezlaw.com. If you plan to use a third-party file share and/or file hosting
provider (such as DropBox), please allow access to the documents until at least the day after the
mediation session. In addition, on the day of the mediation, each party should also bring to the
session a full copy of the mediation brief and any other documentation which may be helpful to
your respective positions.
As you know, my role as a mediator is to remain neutral and not act as an advocate for
any party. All activities during the mediation process are to be considered privileged settlement
discussions covered by the provisions of Evidence Code §§ 1115-28 and/or the Federal Rules of
Evidence. Nothing said or done during the mediation session or in follow-up thereafter shall be
used as evidence in any judicial or other proceeding. It is assumed that both parties agree with
these provisions.
Enclosed please find a sample Confidentiality A greement which has been drafted
pursuant to California Evidence Code §§ 1115-28, the original of which will be available at the
beginning of the mediation session for signature by all parties prior to commencement of the
mediation.
Mediation fees must be received in full four weeks prior to the start of
mediation. Please note the cancellation policy below.
CANCELLATION POLICY: Cancellations must be made not less than four weeks
prior to the date of the scheduled mediation. In the event that the parties do not appear
for the scheduled mediation and this policy has not been complied with, the parties will
be expected to pay the entire mediation fee. The last day for cancellation of this
mediation is: March 7, 2018
I look forward to seeing you on April 3, 2018 and working with you towards a successful
resolution of this matter.
Very truly yours,
(yyOs
MARK S. RUDY
Exhibit 3
CHRIS BAKER, State Bar No. 181557
ghaker@:bakerlp.com
ELECTRONICALLY
DEBORAH SCHWARTZ, State Bar No. 208934
dschwartz@bakertp.com
FILED
Superior Court of Catifornia,
BAKER CURTIS & SCHWARTZ, P.C, County of San Francisco
44 Montgomery Street, Suite 3520 04/02/2018
Clerk of the Court
San Francisco, CA 94104 BY: VANESSA WU
Telephone: (415) 433-1064 Deputy Clerk
Fax: (415) 366-2525
Attorneys for Plaintiffs
JOHN DOE, DAVID GUDEMAN
AND PAOLA CORREA
10 SUPERIOR COURT OF CALIFORNIA
i COUNTY OF SAN FRANCISCO
12
JOHN DOE, DAVID GUDEMAN, and Case No. CGC-16-556034
13 PAOLA CORREA on behalf of the State of
California and aggrieved employees,
14 DOE PLAINTIFFS’ OPPOSITION TO
Plaintiffs, MONIZ’S PLAINTIFF’S EX PARTE
415 vs. APPLICATION TO ATTEND MEDIATION
16 OR RESTRICT SETTLEMENT
GOOGLE, INC., ALPHABET, INC., DISCUSSIONS; BAKER DECLARATION
17 ADECCO USA INC., ADECCO GROUP IN SUPPORT OF OPPOSITION TO EX
NORTH AMERICA and ROES ! through 10 : PARTE APPLICATION
18
Defendants. Department: 304 (COMPLEX)
19
Judge: Hon, Curtis £.A. Karnow
20 Hearing Date: April 2, 2018
Hearing Time: 9:00 a.m.
21
Complaint Filed; December 20, 2016
22 Trial Date: Not Set
23
24
INTRODUCTION
25
Non-party Rachel Moniz’s ex patte application should be denied. Among other things:
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1 This Court cannot compel private mediation among specified parties.
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CORREA’S OPPOSITION TO MONIZ'S EX PARTE APPLICATION
CHRIS BAKER, State Bar No, 181557
cbakera@ibakerlp.com
DEBORAH SCHWARTZ, State Bar No. 208934
dschwartz@bakerlp.corr
BAKER CURTIS & SCHWARTZ, P.C,
44 Montgomery Street, Suite 3520
San Francisco, CA 94104
Telephone: (415) 433-1064
Fax: (415) 366-2525
Attomeys for Plaintiffs
JOHN DOE, DAVID GUDEMAN
AND PAOLA CORREA
10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF SAN FRANCISCO
12
JOHN DOE, DAVID GUDEMAN, and Case No. CGC-16-556034
13 PAOLA CORREA on behalf of the State of
California and aggrieved employees,
14 DOE PLAINTIFFS’ OPPOSITION TO
Plaintiffs, MONIZ2’S PLAINTIFF'S EX PARTE
15 VS. APPLICATION TO ATTEND MEDIATION
16 OR RESTRICT SETTLEMENT
GOOGLE, INC., ALPHABET, INC., DISCUSSIONS; BAKER DECLARATION
17 ADECCO USA INC., ADECCO GROUP IN SUPPORT OF OPPOSITION TO EX
NORTH AMERICA and ROES 1 through 10, a PARTE APPLICATION
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Defendants. Department: 304 (COMPLEX)
19
Judge: Hon. Curtis E.A. Karnow
20 Hearing Date: April 2, 2018
Hearing Time: 9:00 a.m.
al
Complaint Filed: December 20, 2016
22 Trial Date: Not Set
23
24
INTRODUCTION
25
Non-patty Rachel Moniz’s ex parte application should be denied. Among other things:
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1 This Court cannot compel private mediation among specified parties,
a7
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CORREA’S OPPOSITION TO MONIZ’S EX PARTE APPLICATION
2 It is contrary to law and policy to prevent Correa from attempting to resolve all her
at-issue claims with Adecco. Negrete v. Alliance Life Ins. Co. (2008) 523 F.3d 1091 cuts against
Moniz, There, the Ninth Circuit concluded that the district court had erred by prohibiting
plaintiffs in a parallel proceeding from conducting settlement negotiations. It reasoned “if
Negrete’s argument were accepted, the ‘reverse auction argument would lead to the conclusion
that no settlement could ever occur in the circumstances of parallel ot multiple class actions —
none of the competing cases could settle without being accused by another of participating in a
collusive reverse auction."” /d, at 1099, 1100.
3 There is no chance of a “reverse auction” in this case in any event.
10 4. Any resolution of the PAGA claims against Adecco must be approved by this
11 Court. This approval process guards against the possibility of any “reverse auction.”
12 I. FACTS
13 A. The Doe and Moniz Actions
14 Adecco is staffing firm. It employs a small number of full-time employees (“Colleagues”)
15 who manage its operations, and a large number of temporary employees (“Associates”) that
16 Adecco loans out to corporate clients like Google,
17 In the Doe case, Correa expressly brings PAGA claims against Adecco on behalf of the
18 State and the following aggrieved employees: (1) Adecco employees working at Google (SAC at
19 ‘$V 184-185, 213-217); and (2) Adecco employees throughout California. (SAC fff 190-206).
20 Correa challenges Adecca’s NDA with its employees (including the allegation that the NDA
21 agreement for Associates contains a facially invalid non-compete) (SAC Tf] 99-105), its
22 “commitment sheet” with temporary employees (5AC ff 107-110), and its handbook and other
23 policies for temporary employees. (SAC J 111-116). Correa also pleads a claim for unfair
24 competition. (SAC 9] 207-212).
25 This Court dismissed Correa’s NDA claims under Garmon preemption. As Moniz later,
26 and capably, explained to the Moniz court, this Court’s ruling on Garmon preemption is anything
27 but final. (Ex. 1). Moreover, even with respect to the dismissed NDA claims, discovery is
28 proceeding in Doe against Adecco on Correa’s claim for “catalyst” fees,
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CORREA'S OPPOSITION TO MONIZ'S EX PARTE APPLICATION
Tn the Moniz case, Moniz challenges a different NDA signed by one of Adecco’s
“Colleagues.” (The Doe Plaintiffs understand Moniz managed Adecco’s relationship with
Google.) Moniz does not allege NDA claims arising from Adecco’s commitment sheet,
employee handbook, or policies. She does not challenge the non-compete in Adecco’s NDA for
Associates. She has also not brought an unfair competition claim, and she has not alleged that
Adecco is also responsible for its employees’ compliance with Google’s oppressive NDA policies
and practices. (Ex. 2.)
Adecco contends that the Moniz case is limited to the “Colleague” NDA. Moniz contends
her case covers all the NDA agreements of both full-time and temporary employees. The Moniz
10 court will rule on the appropriate scope of the Moniz case in June.
11 B, The Mediation Dispute
12 In January 2018, Google and the Doe Plaintiffs agreed to mediate the Doe case. Adecco
13 agteed to join this mediation. Adecco then withdrew its agreement, and on January 29, 2018,
14 filed two writ petitions challenging the Moniz court’s refusal to stay Moniz and this Court’s order
15 denying coordination. (Adecco did not challenge the Moniz court’s Garmon preemption ruling.)
16 The Court of Appeals summarily denied these petitions seven days later.
17 Moniz, Doe, and Adecco then agreed to engage in a global mediation. What followed was
18 posturing over the price of the mediator and the split of the mediation fees. For example, Adecco
19 — through Latham & Watkins (its then-counsel in Moniz) — initially rejected Judge Layne Phillips
20 as a mediator, despite his availability, as “too expensive,” Doe's counsel — in consultation with
21 Moniz’s counsel — responded:
In proposing Phillips, I was not trying to make the mediator
23 selection a part of the settlement discussions, and I did not propose
Phillips in an attempt to reach a pre-mediation consensus on case
24 value (as sometimes happens). Your rejection of Phillips on the
basis of price suggests that is your client’s concern. I think there
25 will likely be considerable disagreement over case value, and I am
26 trying to find the best person on a timely basis.
27 Task that you reconsider using Phillips.
28 (Ex. 3),
2.
CORREA’S OPPOSITION TO MONIZ'S EX PARTE APPLICATION
In response, Latham asked Moniz’s and Doe’s counsel to consider splitting Phillips’ fee
three ways. (Ex. 3.)
Subsequently, the April 3, 2018 date opened with Mark Rudy, and the parties agreed to
this date and mediator. Plaintiffs’ original understanding was that Plaintiffs’ would collectively
pay 50% and Adecco would pay 50%.
On March 7, 2018, Latham, consistent with its earlier position as to Phillips, took the
position that the mediation must be split three-ways because: (1) Latham arranged the mediation
(which was not true)!; (2) the mediation would be at Latham’s offices (but only because Rudy’s
office could nat accommodate three separate parties); and (3) Latham would provide lunch.
10 Doe’s counsel viewed this as posturing gamesmanship. While it was clearly inappropriate
11 to split the mediation cost three ways, Doe’s counsel did not want to respond to Latham’s
12 gamesmanship in kind. Doe’s counsel emailed Moniz’s counsel, stating: “I recommend
13 discussing live before we respond . . . . Clearly there is something going on.” (Ex. 3.)
14 Unfortunately, and contrary to Doe’s counsel's recommendation, Moniz’s counsel responded to
15 Latham an hour ox so later and called Latham’s bluff. (Ex. 4.)
16 The Doe Plaintiffs did not, and do not, believe brashly canceling this mediation was in
17 Cortea’s, the State's, or the aggrieved employees’ interests, The issue as to the scope of the
18 Moniz case has not yet been resolved, and if Moniz loses on that issue, the Moniz case, which
19 now potentially involves tens of thousands of temporary employees, will instead involve only
20 several hundred full-time employees. If that happens, all the PAGA claims as to the temporary
21 employees will be left entirely to Correa and/or the Court of Appeals’ eventual ruling on Garmon
22 preemption.
23 On March 8, Adecco’s counsel in Doe (Epstein Becker) called Doe’s counsel to determine
24 if the mediation could be put on track. Doe's counsel eventually agreed to a bilateral mediation
25 on the condition that Adecco: (1) produce the agreement governing Adecco’s business
26 relationship with Google; (2) respond to Doe’s outstanding discovery on the issue of catalyst fees
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28 ' Counsel for Doe spent significant time identifying, assessing, and contacting potential
mediators.
3.
CORREA’S OPPOSITION TO MONIZ’S EX PARTE APPLICATION
(which would also inform Correa’s claims for injunctive relief and the ongoing accrual of PAGA
penalties); and (3) provide additional exposure information concerning Adecco’s workforce and
the calculation of liability. Adecco agreed to these conditions. Shortly thereafter, Adecco fired
Latham and substituted Epstein Becker in the Moniz case.
c Joint Prosecution Agreement
Throughout this time frame, Doe’s and Moniz’s counsel have engaged in negotiations
over a “joint prosecution agreement.” To date, those negotiations have been unsuccessful.
Without going into detail, one factor that has informed these negotiations is the uncertain
outcome of future rulings by different courts (including the Court of Appeals) tasked with
10 ultimately deciding this matter.
ll 1, ARGUMENT
12 A. The Court Cannot Compel Moniz’s Attendance at the Mediation
13 While the Court can order a mandatory settlement conference, it cannot compel private,
14 and costly, mediation. As this Court's ADR Program Information Package explains: “Mediation
15 is a voluntary, flexible, and confidential process in which a neutral third party facilitates
16 negotiations. .. . Although not currently a part of the court’s ADR program, patties may elect any
17 private mediator of their choice; the selection and coordination of private mediation is the
18 responsibility of the parties.”*
19 A mediation of this case without Moniz was contemplated by the parties as early as
20 January 2018, when Doe and Google informed the Court that they intended to engage in
2t mediation and that Adecco would participate. Moniz raised no objection at that time.
22 Now, after the dispute conceming the mediation fee split, Correa and Adecco have agreed
23 to private bilateral mediation and have shared the cost. (Moniz has paid nothing.) Correa and
24 Adecco have exchanged confidential mediation briefs and Doe’s counsel is subject to certain
25 confidentiality obligations to both Adecco and Google.
26
27 2
28 https://www.sfsuperiorcourt.org/sites/default/files/images/ADR%20Packet%20201 8. pdf? 152
2434820846.
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CORREA'S OPPOSITION TO MONIZ’S EX PARTE APPLICATION
1 This mediation train has left the station. Moniz’s compelled presence at mediation, when
they have not provided or received mediation briefs, and when Doe cannot share information with
them absent Google and Adecco’s agreement, will likely frustrate settlement discussions, not help
them. Moreover, Moniz’s compelled presence also upsets the expectations of Correa and Adecco
in agreeing to a bilateral mediation in light of Latham’s and Moniz’s counsel’s unfortunate,
abrupt and mutually-destructive “game of chicken” over $2500 (i.¢., the difference between a
two-way and three-way mediation cost split) minus the cost of lunch.
In sum, there is no basis to compel Monia’s attendance at the April 3 mediation.
B. The Court Cannot Restrict Negotiations between Correa and Adecco
10 Because Moniz understands she is not entitled to attend the mediation, she seeks to limit
ll its utility, She asks the Court to enter ah order requiring Correa and Adecco “to except the claims
12 at issue in Moniz from any settlement and any attendant release at the forthcoming mediation.”
13 (Moniz MPA at 19-21). The Court should reject Moniz’s request.
14 First, the judiciary favors settlement. Moniz seeks an order prohibiting settlement.
15 Second, Correa is aware of no authority that permits a court to prohibit settlement
16 discussions or settlement, While the Court can certainly reject a PAGA settlement under Labor
17 Code § 2699, it cannot prevent it from happening in the first place.
18 Third, there is an obvious dispute as to what claims are “at issue” in Moniz. The Moniz
19 case, as currently pled, alleges claims concerning the NDA agreement of Adecco’s full-time
20 employees (“Colleagues”), Correa, on the other hand, signed the same NDA agreement
21 applicable to all of Adecco’s temporary employees. Moreover, unlike Correa, Moniz has not pled
22 claims arising from Adecco’s commitment sheet, employee handbook, or Adecco’s unlawful non-
23 compete, Moniz has not pled an unfair competition claim, nor has Moniz alleged that Adecco
24 shares responsibility for Google’s oppressive NDA policies and practices. In other words, Moniz
25 apparently requests an order prohibiting settlement discussions or settlement conceming claims
26 that Moniz has not alleged and cannot bring. This is obviously inappropriate.
27 Finally, as detailed below, there is no risk of a “reverse auction” in this case.
28
5.
CORREA'S OPPOSITION TO MONIZ'S EX PARTE APPLICATION
c. Unfounded Speculation of a Potential “Reverse Auction” Does Not Justify
Moniz’s Requested Relief
Moniz claims that any potential settlement between Correa and Adecco will be the result
of a “reverse auction” because Correa’s claims have “little or no settlement value” as a result of
this Court’s Garmon rulings. However, Moniz, Correa, and the Moniz court al! agree that this
Court’s Garmon rulings are incorrect and not yet final. In its writ petition, Adecco’s prior
counsel Latham essentially admitted that “reasonable minds might differ” about this Court’s
Garmon tulings, and Adecco’s current counsel stated during argument in this case that
“application of the Garmon preemption standard is a very intellectually challenging thing,” and
10
that Adecco had “no objection” to this Court recommending that the appellate court review its
11
Garmon rulings under CCP § 166.1. In other words, Correa’s PAGA claims undoubtedly have
12
settlement value.
13
Moreover, as a condition of mediation, Correa insisted that Adecco respond to outstanding
14
discovery and provide the information necessary to value the PAGA claims. It has done so.
15
Accordingly, Doe’s counsel is well-positioned to value the PAGA claims at issue in the Doe case,
16
Indeed, Doe’s counsel likely has more information than Moniz's counsel about the value of the
17
PAGA claims against Adecco.
18
Finally, Moniz’s counsel raises the prospect of “collusion.” However, Doe’s counsel first
19
began working on the Doe matter in April 2016. He has vigorously prosecuted this case ever
20
since. Among other things, and as this Court is well aware, the Doe case has involved five
21
dernurrers, a motion to stay, at least three discovery motions, and two writ petitions. Doe
counsel’s commitment to this case, and to the need to change the use of oppressive NDAs by
23
employers, should be unquestioned. There is nothing “collusive” going on, and it is offensive to
24
suggest otherwise. An “odor of mendacity” does not arise when two sets of attorneys engage in
25
counter-productive gamesmanship, a corporate client fires the attorneys on its end who engaged
26
in the gamesmanship, and then proceeds to mediate with the plaintiff who undisputedly has a
27
broader set of claims, and whose attorney originally conceived the claims and first filed suit
28
against the corporate client.
-6-
CORREA’S OPPOSITION TO MONIZ’S EX PARTE APPLICATION
1 Ifa settlement is reached, this Court must approve it. The Court should not prohibit
settlement discussions or settlement simply because a non-party prosecuting a non-coordinated
case contends she should also be included.
Iv. CONCLUSION
For all the reasons set forth above, Moniz’s ex parte application should be denied.
Dated: March 30, 2018 BAKER Cl RTIS & SCHWAB
By
Bakery Att
J. or Taint
DOE, GUDEMA) & CORREA
10
ll
BAKER DECLARATION IN SUPPORT OF OPPOSITION
12
TO EX PARTE APPLICATION
13
I, Chris Baker, declare as follows:
14
1 J am counsel of record for Paclo Correa in this case,
15
2. Ihave knowledge of the facts set forth above, whether through reviewing or
16
teceipt of documents, the review of pleadings, my presence at hearings, or my communications
17
with counsel for Moniz or Adecco. These facts are true.
18
3 Attached as Exhibit | are excerpts of Moniz Opposition to Adecco’s Renewed
19
Demurrer in the Moniz action concerning the finality of this Court’s Garmon rulings.
20
4 Exhibit 2 is a copy of the complaint in Moniz.
21
3 Attached as Exhibit 3 is email correspondence concerning the potential use of
22
Layne Phillips as a mediator.
23
6 Attached as Exhibit 4 is my email to Moniz’s counsel following Latham’s
24
statement that it would not agree to mediate unless the parties split Mark Rudy’s mediation fee
25
three ways.
26
7
Attached as Exhibit 5 is Moniz's counsel’s response to Latham’s contention that
27
the mediation fee must be split three ways.
28
-7-
CORREA’S OPPOSITION TO MONI2’$ EX PARTE APPLICATION
I declare, under penalty of perjury, under the laws of the State of California, that this
declaration is true and correct. This declaration was execute and signed by me on h 30,
2018 in San Francisco, California.
‘hris.
10
i
12
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14
15
16
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18
19
20
21
22
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8
CORREA’S OPPOSITION TO MONIZ’S EX PARTE APPLICATION
Exhibit 4
Chris Baker
From: Chris Baker
Sent: Thursday, April 05, 2018 2:20 PM
To: ‘Kyle G. Bates’; Carolyn H. Cottrell; Matthew A. Goodin; Steven R. Blackburn
Ce: Mike Curtis; Deborah Schwartz
Subject: RE: Moniz v. Adecco
All:
| have set a hearing date of May 3 at 2:00 p.m. for Correa’s motion to intervene. Again, please let me know if you will
stipulate.
Thanks.
Chris
BAKER CURTIS &
cS SCHWARTZ PC
44 Montgomery Street, Suite 3520
San Francisco, CA 94104
cbaker@bakerlp.com
415.433.1064
This email may be subject to the attorney client, work product or another privilege. If this email was sent to you in error,
please delete it. If the email is subject to a privilege, do not distribute.
From: Kyle G. Bates [mailto:kbates@schneiderwallace.com]
Sent: Wednesday, April 04, 2018 9:44 AM
To: Chris Baker ; Carolyn H. Cottrell ; Matthew A. Goodin
; Steven R. Blackburn
Ce: Mike Curtis ; Deborah Schwartz
Subject: RE: Moniz v. Adecco
Chris,
What is your basis for the motion?
.. SCHNEIDER WALLACE
COTTRELL KONECKY
WOTKYNS up
Kyle G. Bates
2000 Powell Street, Suite 1400
Emeryville, California 94608
Telephone: (415 421-7100
Toll Free: (800 689-0024
Facsimile: (415 421-7105
www.schneiderwallace.com
From: Chris Baker [mailto:cbaker@bakerlp.com]
Sent: Tuesday, April 03, 2018 3:57 PM
To: Carolyn H. Cottrell ; Kyle G. Bates ; Matthew A.
Goodin ; Steven R. Blackburn
Cc: Mike Curtis ; Deborah Schwartz
Subject: RE: Moniz v. Adecco
Counsel:
Following up on the below, please be advised that Paola Correa intends to file a motion to intervene in the Moniz
case. The date of the hearing will be April 30, May 2, May 3, or May 4. Please advise ASAP if any of the these dates are
unworkable.
Also, and as an additional follow up to the below email, please advise if Moniz or Adecco will stipulate to Correa’s
intervention.
Thanks so much.
Chris
BAKER CURTIS &
SCHWARTZ PC
44 Montgomery Street, Suite 3520
San Francisco, CA 94104
ct baker @bakerlp.com
415.433.1064
This email may be subject to the attorney client, work product or another privilege. If this email was sent to you in error,
please delete it. If the email is subject to a privilege, do not distribute.
From: Chris Baker
Sent: Wednesday, March 21, 2018 4:31 PM
To: Carolyn H. Cottrell ; 'Kyle G. Bates' ; 'Matthew A.
Goodin' ; Steven R. Blackburn
Ce: Mike Curtis (mcurtis@bakerlp.com) ; 'Deborah Schwartz (Work) (dschwartz@bakerlp.com)'
Subject: M
Preview
CHRIS BAKER, State Bar No. 181557 cbaker@bakerlp.com F DEBORAH SCHWARTZ, State Bar No. 208934 Electronically cbaker@bakerlp.com BAKER CURTIS & SCHWARTZ, P.C. by Superior Court of California 44 Montgomery Street, Suite 3520 County of San Mateo San Francisco, CA 94104 4/26/2018 Telephone: (415) 433-1064 Fax: (415) 366-2525 c t words Attorneys for [Proposed] Intervenor Deputy Clerk PAOLA CORREA IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA. 10 COUNTY OF SAN MATEO 11 12 RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736 California and aggrieved employees, 13 BAKER REPLY DECLARATION IN 14 Plaintiff, SUPPORT OF CORREA’S MOTION FOR LEAVE TO INTERVENE 15 vs. Assigned for All Purposes to 16 ADECCO USA, INC., and DOES 1-50, inclusive > Hon. Marie S. Weiner 17 Defendants. DATE: May 3, 2018 18 TIME: 2:00 PM DEPT.: 2 19 Complaint Filed: April 18, 2017 20 Trial Date: September 4, 2018 21 22 23 I, Chris Baker, declare as follows: 24 1 Iam counsel for Paola Correa and have personal knowledge of the following facts. 25 2 The parties in Doev. Google et. al. (including Adecco) first contemplated a 26 mediation of that case in early January 2018. They retained David Rotman as the mediator. A 27 copy of the Doe Court’s order referencing this mediation is attached as Exhibit 1. 28 -1- BAKER REPLY DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE 3 Adecco subsequently withdrew from the Rotman mediation, and Adecco, Doe and Moniz agreed to a global mediation with Mark Rudy on April 3, 2018. A copy of the correspondence confirming this global mediation is attached as Exhibit 2. 4. Following a dispute concerning the cost of mediation and lunch, on March 7, 2018, Moniz and Adecco called off the global mediation. The events leading up to this dispute are described in Correa’s opposition to Moniz’s ex parte application to the Doe Court, which is attached as Exhibit 3 (without the exhibits). 5 Following the communications between Moniz’s counsel and Adecco’s prior- counsel (Latham & Watkins) canceling the global mediation, Adecco’s current counsel (Epstein 10 Becker) and Correa discussed and agreed to a bilateral mediation of the Doe case with Mark Rudy 11 on the previously-set April 3, 2018 date. 12 6 On March 21, 2018, Correa notified Adecco and Moniz of her intent to intervene in 13 this case and proposed hearing dates on which this Court stated it was available. In response, 14 Moniz declined to state her availability, though she inquired as to Correa’s grounds for 15 intervention, which I provided. A copy of the email thread detailing this correspondence is 16 attached as Exhibit 4. 17 7 Correa and Adecco mediated the Doe matter on April 3, 2018. The mediation was 18 unsuccessful, though settlement discussions continue. Also on April 3, 2018, Adecco’s counsel 19 provided me with a copy of Adecco’s March 5, 2018 correspondence concerning its position on 20 the “scope” issue (which is set forth as Exhibit 3 to my original declaration). It was not until I 21 received this correspondence that I learned Moniz had apparently agreed to not amend her PAGA 22 complaint or PAGA notice as a condition of her individual settlement. 23 8 As of the time of the filing ofthis reply, my office has still not received a copy of 24 Moniz’s opposition through the mail. I did receive an email on April 24, 2018 from 25 service@onelegal.com that permitted me to download the opposition, but this email easily could 26 have been missed. My office was not on the lookout for electronic service in this case because we 27 had never agreed to such service. Moreover, my office receives a high volume of emails each day 28 -2- BAKER REPLY DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE and a numerous emails from One Legal, many of which concern confirmation or status updates regarding our own filings (as well as billing information and spam). I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed this 26th day of April, 2018, in San ‘ancisco, California. ARC er 10 11 12 13 14 < 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- BAKER REPLY DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE Exhibit 1 A BERVICS a 61580828 Jan 17 2018 03:36PM 8 Sar mg San Francisco County Suserior Court ZACHARY P. HUTTON (Cal. State Bar No. 234737) PAUL HASTINGS LLP JAN 17 2018 55 Second Street Twenty-Fourth Floor San Francisco, California 94105-3441 Telephone: 1(415) 856-7000 Facsimile: 1(415) 856-7100 BY: eR OF TAR CLERK OF T)HE. COURT japuty Glen achhutton@paulhastings.com CAMERON W. FOX (Cal. State Bar No, 218116) ANKUSH DHUPAR (Cal. State Bar No. 307689) PAUL HASTINGS LLP 515 South Flower Street, 25th Floor Los Angeles, California 90071 Telephone: 1(213) 683-6000 Facsimile; 1(213) 627-0705 eronfox! aulhastings.com ar 10 Attorneys for Defendants it GOOGLE INC. and ALPHABET INC. 12 [ADDITIONAL COUNSEL ON FOLLOWING PAGE] 13 SUPERIOR COURT OF CALIFORNIA. 14 COUNTY OF SAN FRANCISCO, 15 16 JOHN DOE, DAVID GUDEMAN, and. NO. CGC-16-556034 7 PAOLA CORREA on behalf of the State of California and aggrieved employees, JOINT STIPULATION STAYING 18 PROCEEDINGS PENDING PRIVATE Plaintiffs, MEDIATION AND (2EPSSLD] ORDER 19 vs, 20 Department: 304 (COMPLEX) GOOGLE, INC., ALPHABET, INC., Judge: Hon. Curtis L.A. Karnow ai ADECCO USA INC., ADECCO GROUP NORTH AMERICA and ROES 1 through 10, Complaint File: December 20, 2016 22 Trial Date: Not Set Defendants. 24 25 26 27 28 JOINT STIPULATION STAYING PROCEEDINGS AND #R6POSED] ORDER LBGAL_US_W # 927638962 CHRIS BAKER (Cal. State Bar No. 181557) DEBORAH SCHWARTZ (Cal. State Bar No. 208934) BAKER CURTIS & SCHWARTZ, P.C. 44 Montgomery Street, Suite 3520 San Francisco, Califormia 94104 Telephone: 1(415) 433-1064 Facsimile: 1(415) 366-2525 ebaker@balerlp.com dschwart: bakerlp.com E Attorneys for Plaintiffs JOHN DOE; DAVID GUDEMAN, AND PAOLA CORREA 10 iL 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 -2- JOINT STIPULATION STAYING PROCEEDINGS AND [PROPOSED] ORDER LEGAL_US_W # 92763896.2 —- STIPULATION Defendants Google Inc,! and Alphabet Inc. (collectively Google”) and Plaintiffs John Doe, David Gudeman, and Paola Correa (collectively “the Parties”), by and through their respective counsel of record, hereby stipulate as follows: 1 Plaintiffs and Google have agreed to submit this action to private mediation on March 22, 2018 before David Rotman. 2. Adecco has agreed to join this mediation, but is not a party to this stipulation. 3 The parties in the related Cassel v. Google case, currently pending in Santa Clara County Superior Court, have also agreed to join this mediation, but are not parties to this 10 stipulation. it 4. The parties are actively meeting and conferring regarding the exchange of 12 information that Plaintiffs believe is necessary to assess the claims for mediation. 13 5 In the meantime, Google and Plaintiffs have agreed to stay all matters between 14 them, including discovery deadlines and the discovery that is subject to the Court’s December 22, 15 2017 Order. This stay shall also specifically apply to any additional formal discovery served by 16 Google or Plaintiffs during the period of the stay. This stay shall also apply to any upcoming 17 deadlines to move to compel with respect to outstanding discovery. 18 6 Either Plaintiffs or Google may lift the stay by filing a notice with the Court that 19 the stay should be lifted. Seven days after the filing of such notice, all deadlines, including 20 discovery deadlines, will, and without further order of the Court, again begin to run, 21 7. Following the mediation, Google and Plaintiffs will report back promptly to the 22 Court on the result of mediation and the status of the case. 23 8, In light of this Stipulation and [Proposed] Order, Google and Plaintiffs request that 24 the Court continue the upcoming tase management conference, currently scheduled for February 25 13, 2018, to the month of April. 26 27 28 ' Google represents that, effective October 1, 2017, Google Inc. became Google LLC. JOINT STIPULATION STAYING PROCEEDINGS AND PROPOSED} ORDER LEGAL_US_W # 927638962 -- — — — ed 1 9 This stay does not apply to any proceedings that might occur in the Court of 2 Appeal, or matters between Plaintiffs and Adecco. DATED: January, 2018 PAUL HASTINGS LLP ZACHARY P. HUTTON CAMERON W. FOX ANKUSH DHUPAR By: Ld ef ZACHARY P. Hi ‘ON Attorneys for Defendants GOOGLE INC, and ALPHABET INC, 10 DATED: January 2018 BAKER CURTIS & SCHWARTZ, P.C. i CHRIS BAKER DEBO! SCHWARTZ 12 13 14 By: CHRIS BAKER 1s Attorneys for Plaintiffs JOHN DOE, DAVID GUDEMAN, AND PAOLA 16 CORREA 7 18 19 20 21 22 23 24 25 26 27 28 {PROBPOSERY ORDER STAYING PROCEEDING PENDING PRIVATE MEDIATION LEGAL_US_W # 927632962 — (PROVOSED] ORDER On the stipulation of Defendants Google Inc. and Alphabet Inc. (collectively “Google”) and Plaintiffs John Doe, David Gudeman, and Paola Correa, and good cause appearing therefor, IT IS ORDERED that all matters between Plaintiffs and Google, including discovery deadlines, are stayed in accordance with the parties’ stipulation, which is incorporated by reference into this Order. The status conference currently set for February 13, 2018 is continued. oe mn, to A phe 10 tol joi int case management confeience statement Shall be filed with the Court no later then Aya 6. 2or? Dated: “yy { F 2018 ‘ 10 CURMIS E.A. ~— Judge of the Superior Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT STIPULATION STAYING PROCEEDINGS AND #PR6POSBH] ORDER LEGAL US W # 927638962 -- —-- Exhibit 2 MEDIATION OFFICES OF Mark S. Rupy,A PROFESSIONAL CORPORATION 351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CALIFORNIA 94104 TELEPHONE: (415) 982-1457 FACSIMILE: (415) 434-0513 March 6, 2018 For ALL MEDIATION INQUIRIES: JANET CLARK, LEGAL ASST jclark@rezlaw.com (415) 982-1457 Carolyn H. Cottrell John D. Winer Kyle G. Bates Winer, McKenna & Burritt, LLP David C. Leimbach 1999 Harrison Street, Suite 600 Schneider Wallace Cottrell Konecky Wotkyns Oakland, CA 94612 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Christopher D. Baker Linda M. Inscoe Deborah R. Schwartz Christina P. Teeter Baker, Curtis & Schwartz, PC Latham & Watkins, LLP 44 Montgomery Street, Suite 3520 505 Montgomery Street, Suite 2000 San Francisco, CA 94104 San Francisco, CA 94111 Steven R. Blackbum Matthew A. Goodin Epstein Becker & Green, PC 655 Montgomery Street, Suite 1150 San Francisco, CA. 94111 Re: Adecco Cases Our File No.: 11727-001 Dear Counsel: Mediation in the above matter is confirmed as follows: Date: April 3, 2018 Time: 9:00 a.m. Location: Law Offices of Latham & Watkins, LLP 505 Montgomery Street, Suite 2000 San Francisco, California Mediation Fees Must Be Received by: March 15, 2018 Mediation Briefs Must Be Received by: March 27, 2018 Counsel re: Adecco Cases March 6, 2018 Page 2 The charge for providing mediation services is a non-refundable fee indicated below. An invoice is enclosed herewith. If more than two hours post mediation are spent on this matter, the parties will be charged at my usual hourly rate of $900 per hour. Please make checks payable to: Mark S. Rudy, A Professional Corporation (F ederal Tax I.D. Number 94-3010633). In addition, Wire/ACH instructions are attached. Please include the statement number on the transaction and email Janet Clark jclark@ rezlaw.com with the confirmation. Per Diem Rates for Mediation Individual Cases $10,000 Multi-Plaintiff Cases $12,000 Class Actions $15,000 If a matter has five or more single plaintiffs, the class action rate is charged. On April 1, 2018, mediation rates will be: $15,000 fora class or PAGA action. Single and multi-plaintiff rates will remain the same. In order to facilitate a successful resolution of this case, it is imperative that you take every step possible to comply with the following: . Each party must have a representative present who has authority to resolve the dispute; Since the goal is to obtain an enforceable agreement upon completion of the mediation session, it is strongly recommended that the employer's representative provide plaintiff's counsel with a specimen general release and settlement agreement which the employee will be required to execute assuming that the mediation is successful. I have found that arguing over the terms and conditions of such an agreement and release has, in some cases, resulted in the failure of the mediation process. If the employer is unwilling to provide such a specimen release and general settlement agreement, then the employee's attorney should advise the client that such a written agreement, releasing all known or unknown claims will be required. Ifa pre-mediation telephone conference is necessary, that session should be set up by the requesting party a minimum of ten days prior to the mediation date. I typically do not schedule a pre-mediation conference prior to the start of the session. However, if you believe a pre-mediation conference would be beneficial, please contact my legal assistant to arrange an early morning call with either one or both sides. Counsel re: Adecco Cases March 6, 2018 Page 3 It is my practice to carefully review, prior to the mediation session, the mediation briefs and attachments that are provided to me. Therefore, it is requested that those documents concisely set forth the facts, legal issues, damages claimed, resolution sought, and any other relevant material. I would like to receive mediation briefs from each party on or before March 27, 2018 and, if possible, not to exceed fifteen (15) pages in length. Mediation briefs can be emailed to me directly at msr@rezlaw.com. If you plan to use a third-party file share and/or file hosting provider (such as DropBox), please allow access to the documents until at least the day after the mediation session. In addition, on the day of the mediation, each party should also bring to the session a full copy of the mediation brief and any other documentation which may be helpful to your respective positions. As you know, my role as a mediator is to remain neutral and not act as an advocate for any party. All activities during the mediation process are to be considered privileged settlement discussions covered by the provisions of Evidence Code §§ 1115-28 and/or the Federal Rules of Evidence. Nothing said or done during the mediation session or in follow-up thereafter shall be used as evidence in any judicial or other proceeding. It is assumed that both parties agree with these provisions. Enclosed please find a sample Confidentiality A greement which has been drafted pursuant to California Evidence Code §§ 1115-28, the original of which will be available at the beginning of the mediation session for signature by all parties prior to commencement of the mediation. Mediation fees must be received in full four weeks prior to the start of mediation. Please note the cancellation policy below. CANCELLATION POLICY: Cancellations must be made not less than four weeks prior to the date of the scheduled mediation. In the event that the parties do not appear for the scheduled mediation and this policy has not been complied with, the parties will be expected to pay the entire mediation fee. The last day for cancellation of this mediation is: March 7, 2018 I look forward to seeing you on April 3, 2018 and working with you towards a successful resolution of this matter. Very truly yours, (yyOs MARK S. RUDY Exhibit 3 CHRIS BAKER, State Bar No. 181557 ghaker@:bakerlp.com ELECTRONICALLY DEBORAH SCHWARTZ, State Bar No. 208934 dschwartz@bakertp.com FILED Superior Court of Catifornia, BAKER CURTIS & SCHWARTZ, P.C, County of San Francisco 44 Montgomery Street, Suite 3520 04/02/2018 Clerk of the Court San Francisco, CA 94104 BY: VANESSA WU Telephone: (415) 433-1064 Deputy Clerk Fax: (415) 366-2525 Attorneys for Plaintiffs JOHN DOE, DAVID GUDEMAN AND PAOLA CORREA 10 SUPERIOR COURT OF CALIFORNIA i COUNTY OF SAN FRANCISCO 12 JOHN DOE, DAVID GUDEMAN, and Case No. CGC-16-556034 13 PAOLA CORREA on behalf of the State of California and aggrieved employees, 14 DOE PLAINTIFFS’ OPPOSITION TO Plaintiffs, MONIZ’S PLAINTIFF’S EX PARTE 415 vs. APPLICATION TO ATTEND MEDIATION 16 OR RESTRICT SETTLEMENT GOOGLE, INC., ALPHABET, INC., DISCUSSIONS; BAKER DECLARATION 17 ADECCO USA INC., ADECCO GROUP IN SUPPORT OF OPPOSITION TO EX NORTH AMERICA and ROES ! through 10 : PARTE APPLICATION 18 Defendants. Department: 304 (COMPLEX) 19 Judge: Hon, Curtis £.A. Karnow 20 Hearing Date: April 2, 2018 Hearing Time: 9:00 a.m. 21 Complaint Filed; December 20, 2016 22 Trial Date: Not Set 23 24 INTRODUCTION 25 Non-party Rachel Moniz’s ex patte application should be denied. Among other things: 26 1 This Court cannot compel private mediation among specified parties. 27 28 CORREA’S OPPOSITION TO MONIZ'S EX PARTE APPLICATION CHRIS BAKER, State Bar No, 181557 cbakera@ibakerlp.com DEBORAH SCHWARTZ, State Bar No. 208934 dschwartz@bakerlp.corr BAKER CURTIS & SCHWARTZ, P.C, 44 Montgomery Street, Suite 3520 San Francisco, CA 94104 Telephone: (415) 433-1064 Fax: (415) 366-2525 Attomeys for Plaintiffs JOHN DOE, DAVID GUDEMAN AND PAOLA CORREA 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO 12 JOHN DOE, DAVID GUDEMAN, and Case No. CGC-16-556034 13 PAOLA CORREA on behalf of the State of California and aggrieved employees, 14 DOE PLAINTIFFS’ OPPOSITION TO Plaintiffs, MONIZ2’S PLAINTIFF'S EX PARTE 15 VS. APPLICATION TO ATTEND MEDIATION 16 OR RESTRICT SETTLEMENT GOOGLE, INC., ALPHABET, INC., DISCUSSIONS; BAKER DECLARATION 17 ADECCO USA INC., ADECCO GROUP IN SUPPORT OF OPPOSITION TO EX NORTH AMERICA and ROES 1 through 10, a PARTE APPLICATION 18 Defendants. Department: 304 (COMPLEX) 19 Judge: Hon. Curtis E.A. Karnow 20 Hearing Date: April 2, 2018 Hearing Time: 9:00 a.m. al Complaint Filed: December 20, 2016 22 Trial Date: Not Set 23 24 INTRODUCTION 25 Non-patty Rachel Moniz’s ex parte application should be denied. Among other things: 26 1 This Court cannot compel private mediation among specified parties, a7 28 CORREA’S OPPOSITION TO MONIZ’S EX PARTE APPLICATION 2 It is contrary to law and policy to prevent Correa from attempting to resolve all her at-issue claims with Adecco. Negrete v. Alliance Life Ins. Co. (2008) 523 F.3d 1091 cuts against Moniz, There, the Ninth Circuit concluded that the district court had erred by prohibiting plaintiffs in a parallel proceeding from conducting settlement negotiations. It reasoned “if Negrete’s argument were accepted, the ‘reverse auction argument would lead to the conclusion that no settlement could ever occur in the circumstances of parallel ot multiple class actions — none of the competing cases could settle without being accused by another of participating in a collusive reverse auction."” /d, at 1099, 1100. 3 There is no chance of a “reverse auction” in this case in any event. 10 4. Any resolution of the PAGA claims against Adecco must be approved by this 11 Court. This approval process guards against the possibility of any “reverse auction.” 12 I. FACTS 13 A. The Doe and Moniz Actions 14 Adecco is staffing firm. It employs a small number of full-time employees (“Colleagues”) 15 who manage its operations, and a large number of temporary employees (“Associates”) that 16 Adecco loans out to corporate clients like Google, 17 In the Doe case, Correa expressly brings PAGA claims against Adecco on behalf of the 18 State and the following aggrieved employees: (1) Adecco employees working at Google (SAC at 19 ‘$V 184-185, 213-217); and (2) Adecco employees throughout California. (SAC fff 190-206). 20 Correa challenges Adecca’s NDA with its employees (including the allegation that the NDA 21 agreement for Associates contains a facially invalid non-compete) (SAC Tf] 99-105), its 22 “commitment sheet” with temporary employees (5AC ff 107-110), and its handbook and other 23 policies for temporary employees. (SAC J 111-116). Correa also pleads a claim for unfair 24 competition. (SAC 9] 207-212). 25 This Court dismissed Correa’s NDA claims under Garmon preemption. As Moniz later, 26 and capably, explained to the Moniz court, this Court’s ruling on Garmon preemption is anything 27 but final. (Ex. 1). Moreover, even with respect to the dismissed NDA claims, discovery is 28 proceeding in Doe against Adecco on Correa’s claim for “catalyst” fees, -l- CORREA'S OPPOSITION TO MONIZ'S EX PARTE APPLICATION Tn the Moniz case, Moniz challenges a different NDA signed by one of Adecco’s “Colleagues.” (The Doe Plaintiffs understand Moniz managed Adecco’s relationship with Google.) Moniz does not allege NDA claims arising from Adecco’s commitment sheet, employee handbook, or policies. She does not challenge the non-compete in Adecco’s NDA for Associates. She has also not brought an unfair competition claim, and she has not alleged that Adecco is also responsible for its employees’ compliance with Google’s oppressive NDA policies and practices. (Ex. 2.) Adecco contends that the Moniz case is limited to the “Colleague” NDA. Moniz contends her case covers all the NDA agreements of both full-time and temporary employees. The Moniz 10 court will rule on the appropriate scope of the Moniz case in June. 11 B, The Mediation Dispute 12 In January 2018, Google and the Doe Plaintiffs agreed to mediate the Doe case. Adecco 13 agteed to join this mediation. Adecco then withdrew its agreement, and on January 29, 2018, 14 filed two writ petitions challenging the Moniz court’s refusal to stay Moniz and this Court’s order 15 denying coordination. (Adecco did not challenge the Moniz court’s Garmon preemption ruling.) 16 The Court of Appeals summarily denied these petitions seven days later. 17 Moniz, Doe, and Adecco then agreed to engage in a global mediation. What followed was 18 posturing over the price of the mediator and the split of the mediation fees. For example, Adecco 19 — through Latham & Watkins (its then-counsel in Moniz) — initially rejected Judge Layne Phillips 20 as a mediator, despite his availability, as “too expensive,” Doe's counsel — in consultation with 21 Moniz’s counsel — responded: In proposing Phillips, I was not trying to make the mediator 23 selection a part of the settlement discussions, and I did not propose Phillips in an attempt to reach a pre-mediation consensus on case 24 value (as sometimes happens). Your rejection of Phillips on the basis of price suggests that is your client’s concern. I think there 25 will likely be considerable disagreement over case value, and I am 26 trying to find the best person on a timely basis. 27 Task that you reconsider using Phillips. 28 (Ex. 3), 2. CORREA’S OPPOSITION TO MONIZ'S EX PARTE APPLICATION In response, Latham asked Moniz’s and Doe’s counsel to consider splitting Phillips’ fee three ways. (Ex. 3.) Subsequently, the April 3, 2018 date opened with Mark Rudy, and the parties agreed to this date and mediator. Plaintiffs’ original understanding was that Plaintiffs’ would collectively pay 50% and Adecco would pay 50%. On March 7, 2018, Latham, consistent with its earlier position as to Phillips, took the position that the mediation must be split three-ways because: (1) Latham arranged the mediation (which was not true)!; (2) the mediation would be at Latham’s offices (but only because Rudy’s office could nat accommodate three separate parties); and (3) Latham would provide lunch. 10 Doe’s counsel viewed this as posturing gamesmanship. While it was clearly inappropriate 11 to split the mediation cost three ways, Doe’s counsel did not want to respond to Latham’s 12 gamesmanship in kind. Doe’s counsel emailed Moniz’s counsel, stating: “I recommend 13 discussing live before we respond . . . . Clearly there is something going on.” (Ex. 3.) 14 Unfortunately, and contrary to Doe’s counsel's recommendation, Moniz’s counsel responded to 15 Latham an hour ox so later and called Latham’s bluff. (Ex. 4.) 16 The Doe Plaintiffs did not, and do not, believe brashly canceling this mediation was in 17 Cortea’s, the State's, or the aggrieved employees’ interests, The issue as to the scope of the 18 Moniz case has not yet been resolved, and if Moniz loses on that issue, the Moniz case, which 19 now potentially involves tens of thousands of temporary employees, will instead involve only 20 several hundred full-time employees. If that happens, all the PAGA claims as to the temporary 21 employees will be left entirely to Correa and/or the Court of Appeals’ eventual ruling on Garmon 22 preemption. 23 On March 8, Adecco’s counsel in Doe (Epstein Becker) called Doe’s counsel to determine 24 if the mediation could be put on track. Doe's counsel eventually agreed to a bilateral mediation 25 on the condition that Adecco: (1) produce the agreement governing Adecco’s business 26 relationship with Google; (2) respond to Doe’s outstanding discovery on the issue of catalyst fees 27 28 ' Counsel for Doe spent significant time identifying, assessing, and contacting potential mediators. 3. CORREA’S OPPOSITION TO MONIZ’S EX PARTE APPLICATION (which would also inform Correa’s claims for injunctive relief and the ongoing accrual of PAGA penalties); and (3) provide additional exposure information concerning Adecco’s workforce and the calculation of liability. Adecco agreed to these conditions. Shortly thereafter, Adecco fired Latham and substituted Epstein Becker in the Moniz case. c Joint Prosecution Agreement Throughout this time frame, Doe’s and Moniz’s counsel have engaged in negotiations over a “joint prosecution agreement.” To date, those negotiations have been unsuccessful. Without going into detail, one factor that has informed these negotiations is the uncertain outcome of future rulings by different courts (including the Court of Appeals) tasked with 10 ultimately deciding this matter. ll 1, ARGUMENT 12 A. The Court Cannot Compel Moniz’s Attendance at the Mediation 13 While the Court can order a mandatory settlement conference, it cannot compel private, 14 and costly, mediation. As this Court's ADR Program Information Package explains: “Mediation 15 is a voluntary, flexible, and confidential process in which a neutral third party facilitates 16 negotiations. .. . Although not currently a part of the court’s ADR program, patties may elect any 17 private mediator of their choice; the selection and coordination of private mediation is the 18 responsibility of the parties.”* 19 A mediation of this case without Moniz was contemplated by the parties as early as 20 January 2018, when Doe and Google informed the Court that they intended to engage in 2t mediation and that Adecco would participate. Moniz raised no objection at that time. 22 Now, after the dispute conceming the mediation fee split, Correa and Adecco have agreed 23 to private bilateral mediation and have shared the cost. (Moniz has paid nothing.) Correa and 24 Adecco have exchanged confidential mediation briefs and Doe’s counsel is subject to certain 25 confidentiality obligations to both Adecco and Google. 26 27 2 28 https://www.sfsuperiorcourt.org/sites/default/files/images/ADR%20Packet%20201 8. pdf? 152 2434820846. -4- CORREA'S OPPOSITION TO MONIZ’S EX PARTE APPLICATION 1 This mediation train has left the station. Moniz’s compelled presence at mediation, when they have not provided or received mediation briefs, and when Doe cannot share information with them absent Google and Adecco’s agreement, will likely frustrate settlement discussions, not help them. Moreover, Moniz’s compelled presence also upsets the expectations of Correa and Adecco in agreeing to a bilateral mediation in light of Latham’s and Moniz’s counsel’s unfortunate, abrupt and mutually-destructive “game of chicken” over $2500 (i.¢., the difference between a two-way and three-way mediation cost split) minus the cost of lunch. In sum, there is no basis to compel Monia’s attendance at the April 3 mediation. B. The Court Cannot Restrict Negotiations between Correa and Adecco 10 Because Moniz understands she is not entitled to attend the mediation, she seeks to limit ll its utility, She asks the Court to enter ah order requiring Correa and Adecco “to except the claims 12 at issue in Moniz from any settlement and any attendant release at the forthcoming mediation.” 13 (Moniz MPA at 19-21). The Court should reject Moniz’s request. 14 First, the judiciary favors settlement. Moniz seeks an order prohibiting settlement. 15 Second, Correa is aware of no authority that permits a court to prohibit settlement 16 discussions or settlement, While the Court can certainly reject a PAGA settlement under Labor 17 Code § 2699, it cannot prevent it from happening in the first place. 18 Third, there is an obvious dispute as to what claims are “at issue” in Moniz. The Moniz 19 case, as currently pled, alleges claims concerning the NDA agreement of Adecco’s full-time 20 employees (“Colleagues”), Correa, on the other hand, signed the same NDA agreement 21 applicable to all of Adecco’s temporary employees. Moreover, unlike Correa, Moniz has not pled 22 claims arising from Adecco’s commitment sheet, employee handbook, or Adecco’s unlawful non- 23 compete, Moniz has not pled an unfair competition claim, nor has Moniz alleged that Adecco 24 shares responsibility for Google’s oppressive NDA policies and practices. In other words, Moniz 25 apparently requests an order prohibiting settlement discussions or settlement conceming claims 26 that Moniz has not alleged and cannot bring. This is obviously inappropriate. 27 Finally, as detailed below, there is no risk of a “reverse auction” in this case. 28 5. CORREA'S OPPOSITION TO MONIZ'S EX PARTE APPLICATION c. Unfounded Speculation of a Potential “Reverse Auction” Does Not Justify Moniz’s Requested Relief Moniz claims that any potential settlement between Correa and Adecco will be the result of a “reverse auction” because Correa’s claims have “little or no settlement value” as a result of this Court’s Garmon rulings. However, Moniz, Correa, and the Moniz court al! agree that this Court’s Garmon rulings are incorrect and not yet final. In its writ petition, Adecco’s prior counsel Latham essentially admitted that “reasonable minds might differ” about this Court’s Garmon tulings, and Adecco’s current counsel stated during argument in this case that “application of the Garmon preemption standard is a very intellectually challenging thing,” and 10 that Adecco had “no objection” to this Court recommending that the appellate court review its 11 Garmon rulings under CCP § 166.1. In other words, Correa’s PAGA claims undoubtedly have 12 settlement value. 13 Moreover, as a condition of mediation, Correa insisted that Adecco respond to outstanding 14 discovery and provide the information necessary to value the PAGA claims. It has done so. 15 Accordingly, Doe’s counsel is well-positioned to value the PAGA claims at issue in the Doe case, 16 Indeed, Doe’s counsel likely has more information than Moniz's counsel about the value of the 17 PAGA claims against Adecco. 18 Finally, Moniz’s counsel raises the prospect of “collusion.” However, Doe’s counsel first 19 began working on the Doe matter in April 2016. He has vigorously prosecuted this case ever 20 since. Among other things, and as this Court is well aware, the Doe case has involved five 21 dernurrers, a motion to stay, at least three discovery motions, and two writ petitions. Doe counsel’s commitment to this case, and to the need to change the use of oppressive NDAs by 23 employers, should be unquestioned. There is nothing “collusive” going on, and it is offensive to 24 suggest otherwise. An “odor of mendacity” does not arise when two sets of attorneys engage in 25 counter-productive gamesmanship, a corporate client fires the attorneys on its end who engaged 26 in the gamesmanship, and then proceeds to mediate with the plaintiff who undisputedly has a 27 broader set of claims, and whose attorney originally conceived the claims and first filed suit 28 against the corporate client. -6- CORREA’S OPPOSITION TO MONIZ’S EX PARTE APPLICATION 1 Ifa settlement is reached, this Court must approve it. The Court should not prohibit settlement discussions or settlement simply because a non-party prosecuting a non-coordinated case contends she should also be included. Iv. CONCLUSION For all the reasons set forth above, Moniz’s ex parte application should be denied. Dated: March 30, 2018 BAKER Cl RTIS & SCHWAB By Bakery Att J. or Taint DOE, GUDEMA) & CORREA 10 ll BAKER DECLARATION IN SUPPORT OF OPPOSITION 12 TO EX PARTE APPLICATION 13 I, Chris Baker, declare as follows: 14 1 J am counsel of record for Paclo Correa in this case, 15 2. Ihave knowledge of the facts set forth above, whether through reviewing or 16 teceipt of documents, the review of pleadings, my presence at hearings, or my communications 17 with counsel for Moniz or Adecco. These facts are true. 18 3 Attached as Exhibit | are excerpts of Moniz Opposition to Adecco’s Renewed 19 Demurrer in the Moniz action concerning the finality of this Court’s Garmon rulings. 20 4 Exhibit 2 is a copy of the complaint in Moniz. 21 3 Attached as Exhibit 3 is email correspondence concerning the potential use of 22 Layne Phillips as a mediator. 23 6 Attached as Exhibit 4 is my email to Moniz’s counsel following Latham’s 24 statement that it would not agree to mediate unless the parties split Mark Rudy’s mediation fee 25 three ways. 26 7 Attached as Exhibit 5 is Moniz's counsel’s response to Latham’s contention that 27 the mediation fee must be split three ways. 28 -7- CORREA’S OPPOSITION TO MONI2’$ EX PARTE APPLICATION I declare, under penalty of perjury, under the laws of the State of California, that this declaration is true and correct. This declaration was execute and signed by me on h 30, 2018 in San Francisco, California. ‘hris. 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 CORREA’S OPPOSITION TO MONIZ’S EX PARTE APPLICATION Exhibit 4 Chris Baker From: Chris Baker Sent: Thursday, April 05, 2018 2:20 PM To: ‘Kyle G. Bates’; Carolyn H. Cottrell; Matthew A. Goodin; Steven R. Blackburn Ce: Mike Curtis; Deborah Schwartz Subject: RE: Moniz v. Adecco All: | have set a hearing date of May 3 at 2:00 p.m. for Correa’s motion to intervene. Again, please let me know if you will stipulate. Thanks. Chris BAKER CURTIS & cS SCHWARTZ PC 44 Montgomery Street, Suite 3520 San Francisco, CA 94104 cbaker@bakerlp.com 415.433.1064 This email may be subject to the attorney client, work product or another privilege. If this email was sent to you in error, please delete it. If the email is subject to a privilege, do not distribute. From: Kyle G. Bates [mailto:kbates@schneiderwallace.com] Sent: Wednesday, April 04, 2018 9:44 AM To: Chris Baker ; Carolyn H. Cottrell ; Matthew A. Goodin ; Steven R. Blackburn Ce: Mike Curtis ; Deborah Schwartz Subject: RE: Moniz v. Adecco Chris, What is your basis for the motion? .. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS up Kyle G. Bates 2000 Powell Street, Suite 1400 Emeryville, California 94608 Telephone: (415 421-7100 Toll Free: (800 689-0024 Facsimile: (415 421-7105 www.schneiderwallace.com From: Chris Baker [mailto:cbaker@bakerlp.com] Sent: Tuesday, April 03, 2018 3:57 PM To: Carolyn H. Cottrell ; Kyle G. Bates ; Matthew A. Goodin ; Steven R. Blackburn Cc: Mike Curtis ; Deborah Schwartz Subject: RE: Moniz v. Adecco Counsel: Following up on the below, please be advised that Paola Correa intends to file a motion to intervene in the Moniz case. The date of the hearing will be April 30, May 2, May 3, or May 4. Please advise ASAP if any of the these dates are unworkable. Also, and as an additional follow up to the below email, please advise if Moniz or Adecco will stipulate to Correa’s intervention. Thanks so much. Chris BAKER CURTIS & SCHWARTZ PC 44 Montgomery Street, Suite 3520 San Francisco, CA 94104 ct baker @bakerlp.com 415.433.1064 This email may be subject to the attorney client, work product or another privilege. If this email was sent to you in error, please delete it. If the email is subject to a privilege, do not distribute. From: Chris Baker Sent: Wednesday, March 21, 2018 4:31 PM To: Carolyn H. Cottrell ; 'Kyle G. Bates' ; 'Matthew A. Goodin' ; Steven R. Blackburn Ce: Mike Curtis (mcurtis@bakerlp.com) ; 'Deborah Schwartz (Work) (dschwartz@bakerlp.com)' Subject: M