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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO
330 West Broadway San Diego, CA 92101
Felczer vs. Apple Inc (IMAGED)
CLERK’S CERTIFICATE OF SERVICE BY MAIL
I certify that I am not a party to this cause. I certify that a true copy of the Minute Order Dated 4/26/16 was mailed following standard court practices in a sealed envelope with postage fully prepaid, addressed as indicated below. The mailing and this certification occurred at San Diego, California, on 04/26/2016.
Clerk of the Court, by P, Ashworth Deputy
TYLER J BELONG HOGUE 8 BELONG 17O LAUREL STREET SAN DIEGO, CA 92101
JULIA C RECHERT ORRICK, HERRINGTON & SUTCLIFF LLP 1OOO MARSH ROAD MENLO PARK, CA 94025
MATTHEW A MALE.ET LAW OFFICES OF KIRK B. FREEMAN 256 SUTTER STREET, 6TH FLOOR SAN FRANCISCO, CA 94108
JESSICA R PERRY ORRICK, HERRINGTON & SUTCLIFFE, LLP 1000 MARSH ROAD MENLO PARK, CA 94025
LYNN CHERMLE ORRICK, HERRINGTON 8 SUTCLIFFE LLP 1000 MARSHROAD MENLO PARK, CA 94025
JULLE A DUNINE 501 W BROADWAY # 900 SAN DIEGO, CA 921 013577
KRK B FREEMAN 214 GRANTAVENUE SUTE 301 it 301 SAN FRANCISCO, CA 94108
MICHAEL G LEGGER 1255 TREAT BLVD. ii. 600 WALNUT CREEK, CA 945977605
MATHEW AMALLET 256 SUTTER STREET i. 6TH FL, SAN FRANCISCO, CA 94108
AMY TODD-GHER LITTLERMENDELSONPC 501 W BROADWAY ț STE 900 SAN DIEGO, CA 92101
TODD KBOYER LTTLERMENDELSONPC 50 W SAN FERNANDO, 15TH FLOOR SAN JOSE CA 95113-2303
JEFFREY L. HOGUE HOGUE 8 BELONG 17O LAUREL STREET SAN DIEGO, CA 92101
JULLIE A DUNINE LITTLERMENDELSON 501 W BROADWAY it 900 SAN DIEGO, CA 92101-3577
KRK B FREEMAN 256 SUTTER STREET i 6 SAN FRANCISCO, CA 94108
X Additional names and address attached.
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO
TIME: 09:09:00 AM
JUDICIAL OFFICER PRESIDING: Eddie C Sturgeon
CLERK. Patricia Ashworth
REPORTER/ERM: Not Reported
BALIFF/COURT ATTENDANT: M. MicOne
CASE NO: 37-2011-001 02593-CU-OECTL
CASE INIT.DATE: 12/16/2011
CASE TITLE: Felczer vs. Apple Inc (IMAGED)
CASE CATEGORY: Civil – Unlimited
CASE TYPE: Other employment
The Court, having taken the above-entitled matter under submission on 04/20/2016 and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows:
Plaintiffs Brandon Felczer, Ryan Goldman, Ramsey Hawkins and Joseph Lane Carco’s motion to amend class Certification to add a Subclass is denied.
On July 21, 2014, the court certified plaintiff’s class, including the following two subclasses:
Unlawful Meal Period Policy Subclass (Non-Exempt Non-Managerial Retail Employees):
All of Defendant’s non-exempt non-managerial retail employees who were not relieved of all duties for a first meal period by the end of the fifth hour of work and/or a second meal period by the end of the tenth hour of work, and who were not compensated with one hour of pay for all such instances between December 16, 2007 to August 1, 2012.
Unlawful Meal Period Policy Subclass (Non-Exempt Corporate Employees):
All of Defendant’s non-exempt corporate employees who were not relieved of all duties for a first meal period by the end of the fifth hour of work and/or a second meal period by the end of the tenth hour of work, and who were not compensated with one hour of pay for all such instances between December 16, 2007 to August 1, 2012.
Plaintiffs seek to amend the class certification order and add the subclass:
Unfair Competition Class (Meal Breaks); All of Defendant’s non-exempt employees who did not receive premium pay for missed, shortened, or delayed meal breaks from December 16, 2007 to present.
Preliminarily, the court has discretion to review this motion prior to requiring plaintiff to file a fifth amended complaint. There is a split of authorities as to whether the court may review this motion prior to an amendment, but the court is persuaded by the reasoning of in re Cathode Ray Tube (CRT) Antitrust Litigation (N.D. Cal. 2015) 308 F.R.D. 606, 619-20. The court states that amendments (if any) to the complaint would only be necessary to conform the complaint to the results of litigation. Based upon the allegations in the fourth amended complaint (“4AC”), the allegations in the complaint may have been sufficiently broad to allow an amendment to the class with regard to the premium pay subclass from 2007-2012. However, based upon the extended scope of the proposed amendment, not only in time, but to add “missed breaks” and “shortened breaks,” an amended complaint would be mandated.
The court does not fault plaintiffs’ delay in filing the motion. Plaintiff sought leave to amend the class within two months of Safeway. On November 30, 2015, plaintiffs requested a hearing and the papers were filed by December 30, 2016. Safeway, Inc. v. Superior Court of Los Angeles County (2015) 238 Cal.App.4th 1138, 1155-56, review denied (Oct. 21, 2015) was finalized on October 21, 2015. The court in Safeway concluded that a UCL claim may be predicated on a practice of not paying premium wages for missed, shortened, or delayed meal breaks attributable to the employer’s instructions or undue pressure, and unaccompanied by a suitable employee waiver or agreement. (Id. at p. 1148.)
Even though there may be grounds to add an amendment, based upon the facts presented in this case, to allow an amendment at this late date would harm the current class members who have already been certified. On April 9, 2013, the court granted leave to amend the first amended complaint to add additional itemized wage statement cause of action, and applied the relation back doctrine. At that time, the court recognized the need to be liberal in considering amendments. In stark contrast, the five year statutory period requires this case to be brought to trial by December 16, 2016, or the court shall dismiss case. (Code Civ. Proc., S583.310.) Apple has made it clear it is unwilling to stipulate to extend the a 6.
Plaintiffs argue that no additional discovery is required, the first exchange of experts has not been completed, and this case can be completed by the current trial date of October 16, 2016. The court disagrees based upon the history of this case. Furthermore, Apple would suffer substantial prejudice to extend the class period to the present or to amend the class as requested. First, as set forth above, an amendment to the complaint is required and Apple would be entitled to set a demurrer hearing. Even if ಙ್ಗಗ್ಗಲ್ಲ! was filed immediately, the due course date to hear a demurrer is October 28, 2016, after the trial date.
Plaintiffs argue no further discovery is needed because all of the discovery has been with obtained for the class period of December 16, 2007 to July 31, 2012. Plaintiffs’ expert’s declaration highlights many of the potential problems. Plaintiffs’ expert, statistics professor Robert Fountain, appears to have only relied on the class members’ punch card data for the time period December 16, 2007-July 31, 2012, and determined that there were 6,242,281 work shifts over 5 hours long, eligible for one or more meal breaks. (Fountain decl., 15.) And yet, in the following paragraph, he introduces a damaging ambiguity. He states that if he is provided with additional time records for Apple’s non-exempt employees from August 1, 2012 to present, “I can perform the same analysis described above in order to determine how many Meal Period Events occurred.” His damage analysis adds almost $40 million in damages. His analysis also increased scope of the class from persons who were harmed by the Apple’s policy of delaying meal breaks, to “missed” and “shortened” meal breaks. At a minimum, discovery would need to be reopened to address these differences. Furthermore, unlike Safeway, plaintiffs’ expert does not provide an opinion as to restitution based upon a “market value” approach. Instead, plaintiffs’ expert opines using an individual approach to damages.
There is a substantial difference in preparing for a trial with an additional $40 million in damages. Strategical decisions at the beginning of the case must take in potential damages; this change should not be introduced just months before trial. Given the contentiousness of this case, for plaintiffs to state no further discovery is needed ignores Apple’s rights to discovery. Plaintiffs anticipate an additional 10,000 class members would be added. Apple asserts the number is closer to 18,000. Apple would have the right not only to take Fountain’s deposition and obtain its own expert information, and any resultant discovery motions. Additionally, it took several months to previously agree upon the Wording of the notice to the class and plaintiffs conceded a new notice must be sent out to the class. Finally, without granting priority, future motions for summary judgment would not fit within the court’s calendar.
This court has gone to extraordinary efforts to move this case along, including hearing motions on a shortened time schedule. To allow an amendment at this time would prejudice Apple and the class plaintiffs, who run a substantial risk of having their entire case dismissed. Accordingly, the Court exercises its discretion and denies plaintiff’s motion to amend the class certification Order.
(1) Plaintiffs in their notice requested two subclasses; however, in their motion, plaintiffs only reference the following subclass: Unfair Competition Class (Meal Breaks); All of Defendant’s non-exempt employees who did not receive premium pay for missed, shortened, or delayed meal breaks from December 16, 2007 to present.
Judge Eddie C Sturgeon