Sept 06, 2013 Order Granting Dismissal of 5th COA

 

SUPERIOR COURT OF CALIFORNIA,
FOR THE COUNTY OF SAN DIEGO

Sept 06, 2013 Order Granting Dismissal of 5th COA

BRANDON FELCZER, individually,
RYAN GOLDMAN, individually,
RAMSEY HAWKINS, individually, and
JOSEPH LANE CARCO, on behalf of
themselves and all others similarly situated

Plaintiffs,

vs.

APPLE INC., a California corporation; and DOES 1 through 300, inclusive.

Defendants.


CASE NO.: 37-2011-00102593-CU-OE-CTL
ORDER GRANTING DISMISSAL WITHOUT PREJUDICE OF PLAINTIFFS INDIVIDUAL AND CLASS CLAIMS WITH RESPECT TO THE FIFTH CAUSE OF ACTION (VIOLATION OF LABOR CODE § 212)

“IMAGED FILE”

Judge: Hon. Ronald S. Prager
Dept: C-71

Action Filed: December 16, 2011
Trial Date: Not Set


Pursuant to California Rule of Court 3.770, Plaintiffs’ respectfully request Dismissal Without Prejudice of Plaintiffs’ Individual and Class Claims with respect to the Fifth Cause of Action (violation of Labor Code § 212). This request is based on the Declaration of Jeffrey L. Hogue, and for good cause shown.

IT IS HEREBY ORDERED AS FOLLOWS:

1. Plaintifis’ Fifth Cause of Action for violation of Labor Code § 212 is hereby dismissed without prejudice,
2. The class claims alleged in Plaintiffs’ Third Amended Complaint with respect to Plaintiffs’ Fifth Cause of Action for violation of Labor Code § 212 are hereby dismissed without prejudice.
3, Pursuant w California Rule of Court 3.770(c), the parties need not send notice to the unnamed putative class members of this dismissal.

IT IS SO ORDERED.

Dated: September SEP 06 2013

Signed by:
HON. JUDGE RONALD S. PRAGER
Judge of the San Diego County Superior Court

Jeffrey L. Hogue, Esq. (SBN 234557)
Tyler J. Belong, Esq. (SBN 234543)
Bryce A. Dodds, Esq. (SBN 283491)
HOGUE & BELONG
430 Nutmeg Street, Second Floor
San Diego, CA 92103
Tel: (619) 238-4720
Fax: (619) 270-9856

FILED SEP 06 2013
Clerk of the Superior Court
By:LEE RYAN, Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO

BRANDON FELCZER, individually,
RYAN GOLDMAN, individually,
RAMSEY HAWKINS, individually, and
JOSEPH LANE CARCO, on behalf of themselves and all others similarly situated

Plaintiffs,

vs.

APPLE INC., a California corporation; and DOES 1 through 300, inclusive.

Defendants.


CASE NO.: 37–2011-00102.593-CU-OE-CTL
DECLARATION OF JEFFREY L. HOGUE ISO OF ORDER GRANTING DISMISSAL WITHOUT PREJUDICE OF PLAINTIFFS INDIVIDUAL AND CLASS CLAIMS WITH RESPECT TO THE FIFTH CAUSE OF ACTION (VIOLATION OF LABOR CODE § 212)

“IMAGED FILE”

Judge: Hon. Ronald S. Prager
Dept.: C-74

Action Filed: December 16, 2011
Trial Date: None set

I, JEFFREY L. HOGUE, declare as follows:

1. I am an attorney at law, duly licensed to practice law in the State of California. I am a partner of the law firm of HOGUE & BELONG, APC, attorneys of record for Plaintiffs. I make this declaration from my personal knowledge except as to those matters, if any, stated upon information and belief, and if called as a witness, I could and would competently testify thereto.
2. I submit this declaration pursuant to California Rule of Court, Rule 3.770, in order to seek court approval for the dismissal of the fifth cause of action (Labor Code § 212) without prejudice.
3. Rule of Court 3.770(a) requires court approval of the dismissal of a class action, or cause of action thereof and requires a declaration setting forth the facts and whether consideration is given for the dismissal. Rule of Court 3.770(b) allows the court to grant the dismissal without a hearing. Rather than litigate the class issues with respect to the fifth cause of action, resulting in a waste of valuable court resources and the litigants’ time and expense, Plaintiffs’ move to dismiss the fifth cause of action without prejudice. This claim has been thoroughly litigated and with recently received discovery, Plaintiffs now believe the fifth cause of action (Labor Code 212) is tenuous and Plaintiffs are unlikely to prevail on the merits of that claim.
4. Pursuant to Rule of Court 3.770(c), the action may be dismissed prior to class certification without notice to the class members if the court finds that the dismissal will not prejudice them.
5. The putative class members will not be prejudiced by ismis86 without prejudice of the
class action allegations because putative class members can bring their own claims or on a
representative basis if they choose, irrespective of the dismissal herein. Because the case has yet to be certified as a class action, there is no res judicata effect on any member.
6. No consideration, direct or indirect is being given for this dismissal.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed this 4th day of September, 2013, at San Diego, California.

Signed by:
JEFFREY L. HOGUE, Declarant

PROOF OF SERVICE

Felozery. Apple Inc. et al.
Case No.: 37–2011–00102593-CU-OE-CTL

STATE OF CALIFORNIA, COUNTY OF SAN DIEGO

I am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is HOGUE & BELONG (the “firm”), 430 Nutmeg Street, Second Floor, San Diego, CA 92103.

I am readily familiar with the firm’s practice of collection and processing of correspondence for mailing with the United States Postal Service the same day that it is collected and processed; such correspondence would be deposited with the United States Postal Service that same day in the ordinary course of the firm’s business.

On September 10, 2013, I served the foregoing documents described as
•ORDER GRANTING DISMISSAL WITHOUT PREJUDICE OF PLAINTIFFS’ INDIVIDUAL AND CLASS CLAIMS WITH RESPECT TO THE FIFTH CAUSE OF ACTION (VTOLATION OF LABOR CODE 212) and
• BECLARATION OF JEFFREY L, HOGUE ISO OF ORDER GRANTING DISMISSAL WITHOUT PREJUDICE OF PLAINTIFFS INDIVIDUAL AND CLASS CLAIMS WITH RESPECT TO THE FIFTH CAUSE OF ACTION (VIOLATION OF LABOR CODE § 212)
on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

PLEASE SEE ATTACHED SERVICE LIST.

[X] By Mail
I placed such envelope for deposit with the United States Postal Service by placing it for collection and mailing at my business address on the date stated, following the firm’s ordinary business practice.

[] By Personal Delivery
I personally delivered a copy of the document(s) listed above to the person(s) at the address(es) set forth on the following page.

[] By Electronic Mail
I transmitted a true and correct copy of the above-entitled document(s) to recipients noted via electronic service at the recipient’s office. The recipient(s) has agreed to accept service by electronic mail. This service complies with C.C.P. § 1010.6.
I declare under penalty of pejury under the laws of the State of California that the above is true and correct.

Executed on September 10, 2013, at San Diego, California.

Signed by:
Courtney Weissinger

SERVICE LIST

Felozer Y. Apple Inc., et al
Case No.: 37-2011-00102593-CU-OE-CTL

Atomeys for Defendant APPLE INC.
Julie A. Dunne, Esq.
Lara K. Strauss, Esq.
Khaterëh S. Fahimi, Esq.
LITTLER MENDELSON, P.C.
501.W. Broadway, Suite 900
San Diego, CA 92101
619.232.0441 (tel)
|619.232.4302 (fax).
jdunne@littler.com
Istrauss®littler.com
sfahimi@littler.com


This is an unofficial transcription of a scan of a court document, the original scanned document can be viewed here