Free Order - District Court of California - California

Case 5:08-cv-00780-RS

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JAMES DAL BON, ESQ. (SBN 157942) LAW OFFICES OF JAMES DAL BON 28 North 1st, Suite 210 San Jose, CA 95113 Phone: 408.297.4729 Fax: 408.297.4728 Attorneys for Plaintiffs Gerardo Espinoza, Mariel Pacho and Areli Hernandez

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

GERARDO ESPINOZA; MARIEL PACHO; ARELI HERNANDEZ, Plaintiffs, vs. MEXICALI RESTAURANT GROUP, INC.; DAVID VILLANUEVA and DOES 1 -10, Defendants.

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Case No. 5:08-CV-00780 JOINT CASE MANAGEMENT STATEMENT/RULE 26(f) REPORT; [PROPOSED] ORDER

ORDER OF REASSIGNMENT Date: September 15, 2008 Time: 10:00 a.m. Courtroom: 8

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JOINT CASE MANAGEMENT STATEMENT/RULE 26(F) REPORT

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Attorneys for Defendants Mexicali Restaurant Group, Inc. and David Villanueva

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JEREMY S. MILLSTONE, ESQ. (SBN 166901) JOY C. ROSENQUIST, ESQ. (SBN 214926) MILLSTONE PETERSON & WATTS, LLP Attorneys at Law 2267 Lava Ridge Court, Suite 210 Roseville, CA 95661 Phone: 916.780.8222 Fax: 916.780.8775

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Case 5:08-cv-00780-RS

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Jurisdiction and Service. a. Basis for Court's subject matter jurisdiction over Plaintiff's claims: Fair Labor

Standards Act. b. c. 2. Facts. Plaintiffs' Statement: Plaintiff alleges that Defendants misclassified and/or failed to pay Plaintiff's at the legally required overtime rate for all overtime hours worked by Plaintiffs during the four years preceding the filing of the Complaint. Plaintiffs further allege that Defendants failed to pay them all wages due at the time of their termination (i.e., the unpaid overtime wages) and that paystubs received from Defendants lack the information required by Labor Code § 226. Defendants' Statement: Defendants deny misclassifying Plaintiffs, or any of them, or failing to pay Plaintiffs overtime when they worked overtime hours. Plaintiff Areli Hernandez has never been terminated but rather remains employed by Defendant MRG. 3. Legal Issues. a. Whether Plaintiffs, or any of them, were misclassified by Defendants as Whether any issues exist regarding personal jurisdiction or venue: No. Whether any parties remained to be served: No; all parties have been served.

exempt employees not eligible for overtime pay. b. Whether Defendant MRG willfully failed to pay all wages due and owing to

Plaintiffs Espinoza and Pacho when they separated their employment. 4. Motions. No motions are pending. Defendants anticipate bringing a motion for summary adjudication or summary judgment following completion of discovery. 5. Amendment of Pleadings. Plaintiffs do not anticipate amending their complaint. At this time Defendants do not anticipate amending their answer. 6. Evidence Preservation. Defendants have been instructed to retain, and have retained, all wage and wagerelated records pertaining to Plaintiffs. 2
JOINT CASE MANAGEMENT STATEMENT/RULE 26(F) REPORT

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Disclosures. The Parties have not yet made their initial Rule 26 disclosures. They anticipate doing

so by thirty days. 8. Discovery. No discovery has occurred to date. Plaintiffs anticipate the following discovery: propounding special interrogatories, requests for admission, deposition and document demands on each Plaintiff, to be completed within 150 days. Defendants anticipate propounding special interrogatories, requests for admission, and document demands on each Plaintiff, to be completed within 150 days. 9. Class Actions. Not applicable. 10. Related Cases. None. 11. Relief. Plaintiffs seek to recover their unpaid wages (amount unspecified); the maximum Labor Code § 203 penalty (30 days' wages) because of Defendants' alleged failure to pay all wages due Plaintiffs at the time of their terminations; and a Labor Code § 226 penalty (up to $4,000) for Defendants' alleged failure to provide accurate, itemized paystubs. Plaintiffs also seek to recover liquidated damages (i.e., doubling of the alleged unpaid wages), pre-judgment interest, and reasonable attorney fees and costs. 12. Settlement and ADR. Defendants have filed their ADR certification statements. The Parties have stipulated to mediation. mediation, to be completed by November 7, 2008. 13. Consent to Magistrate Judge for All Purposes. The Parties consent to a magistrate judge for all purposes. The Court has assigned the case to

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Other References. The Parties have stipulated to mediation. The Court has assigned the case to

mediation, to be completed by November 7, 2008. The parties do not anticipate the need for any further reference. 15. Narrowing of Issues. The case is not overly complex; the issues already are relatively narrow. If the parties determine a further narrowing of the issues is appropriate and can be achieved, they will work together to do so via stipulation. 16. Expedited Schedule. This case can be handled on an expedited basis. 17. Scheduling. The Parties submit the following proposed discovery and trial schedule: Discovery cut-off: Hearing dispositive motions: Expert disclosure: Pre-trial conference: Trial: 18. Trial. Plaintiffs' Statement: This case is best suited for a bench trial; however, Plaintiff's counsel believes that it will take three to five days since the parties speak Spanish and require translators. Defendants' Statement: This case is best-suited for a bench trial, which Defendants expect to take no more than two days. /// *** ORDER *** /// In light of the parties' representation that they consent to a Magistrate Judge for all purposes /// (see paragraph 13 in the above Joint Statement), the Clerk of Court shall reassign this case. /// Dated: July 24, 2008 _________________________________ /// JAMES WARE United States District Judge 4
JOINT CASE MANAGEMENT STATEMENT/RULE 26(F) REPORT

January 20, 2009 April 15, 2009 November 20, 2008 May 25, 2009 July 2009

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Disclosure of Non-Party Interested Entities or Persons. To Defendants' knowledge, there are no non-party interested entities or persons.

DATED: July 7, 2008

MILLSTONE, PETERSON & WATTS, LLP Attorneys at Law

By:

/s/ JEREMY S. MILLSTONE JEREMY S. MILLSTONE

Attorneys for Defendants Mexicali Restaurant Group, Inc. and David Villanueva DATED: July 3, 2008 LAW OFFICES OF JAMES DAL BON

By:

/s/ JAMES DAL BON (As Authorized on 7/3/08) JAMES DAL BON

Attorneys for Defendants Mexicali Restaurant Group, Inc. and David Villanueva I hereby attest that I have on file all holograph signatures for any signatures indicated by a "conformed" signature (/s/) within this e-filed document. MILLSTONE PETERSON & WATTS, LLP Attorneys at Law /s/ Jeremy S. Millstone

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JOINT CASE MANAGEMENT STATEMENT/RULE 26(F) REPORT