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Marcus T. Areyano, An Individual; Frank W. Bartlett, An v. Tacaza

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION


March 2, 2011

MARCUS T. AREYANO, AN INDIVIDUAL; FRANK W. BARTLETT, AN INDIVIDUAL; GUADALUPE GONZALEZ, AN INDIVIDUAL; MARY PEARL RIVERA, AN INDIVIDUAL; BRIAN RIGGINS, AN INDIVIDUAL; JUDD ROGERS, AN INDIVIDUAL; DARREN CAMPBELL, AN INDIVIDUAL; AND VINCENT CLINE, AN INDIVIDUAL, PLAINTIFFS,
v.
TACAZA, INC. DBA FAMOUS DAVE'S, A CALIFORNIA CORPORATION; TACAZA II, INC. DBA FAMOUS DAVE'S, A CALIFORNIA CORPORATION; ANAND D. GALA, AN INDIVIDUAL; JONATHAN LITT, AN INDIVIDUAL; AND DOES 1 TO 100, INCLUSIVE,
DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

STIPULATION TO AMEND COMPLAINT; ORDER

B. James Fitzpatrick, SBN 129056 bjfitzpatrick@fandslegal.com FITZPATRICK, SPINI & SWANSTON 838 South Main Street, Suite E Salina, California 93901 Patrick D. Toole, SBN 190118 ptoole@joneshelsley.com JONES HELSLEY PC 265 E. River Park Circle, Suite 310 Fresno, California 93720 Attorneys for Plaintiffs MARCUS T. AREYANO, FRANK W. BARTLETT, GUADALUPE GONZALEZ, MARY PEARL RIVERA, BRIAN RIGGINS, JUDD ROGERS, DARREN CAMPBELL, VINCENT CLINE

STIPULATION

This Stipulation is made and entered into between Plaintiffs Marcus T. Areyano, Frank W. Bartlett, Guadalupe Gonzalez, Mary Pearl Rivera, Brian Riggins, Judd Rogers, Darren Campbell, and Vincent Cline (collectively, "Plaintiffs") and Defendants Tacaza, Inc. dba Famous Dave's, Tacaza II, Inc. dba Famous Dave's, Anand D. Gala, and Jonathan Litt (collectively, "Defendants"), by and through their respective counsel, with reference to the following:

1. WHEREAS, on November 15, 2010, Plaintiffs filed their Complaint in the above-referenced matter in Fresno County Superior Court, Case No. 10 CE CG 03994;

2. WHEREAS, on December 20, 2010, Plaintiffs filed their First Amended Complaint (the "Complaint") in the above-referenced matter in Fresno County Superior Court;

3. WHEREAS, on January 31, 2011, Defendants removed this action to this Court;

4. WHEREAS, Plaintiffs and Defendants met and conferred regarding potential amendments and revisions to the Complaint in order to avoid unnecessary motion practice;

5. WHEREAS, Plaintiffs and Defendants have agreed that defendants Anand D. Gala and Jonathan Litt cannot be personally liable for the alleged violations of California wage and hour laws, if any, and therefore Plaintiffs cannot bring their seventh cause of action, for violation of California's Business & Professions Code § 17200 et seq. against defendants Anand D. Gala and Jonathan Litt;

6. WHEREAS, Plaintiffs have agreed to dismiss defendants Anand D. Gala and Jonathan Litt as to the seventh cause of action;

7. WHEREAS, Plaintiffs and Defendants have further agreed that Plaintiffs cannot recover punitive damages for statutory wage and hour violations;

8. WHEREAS, Plaintiffs have agreed to strike paragraph 5 of their Prayer for Relief in the Complaint;

9. WHEREAS, Plaintiffs and Defendants have further agreed that Plaintiffs cannot recover penalties pursuant to California Labor Code § 210, which permits the recovery of penalties by the California Labor Commissioner only, or Labor Code § 510, which does not allow for the recovery of penalties at all;

10. WHEREAS, Plaintiffs have agreed to strike paragraph 9 and 10 of their Prayer for Relief in the Complaint;

THEREFORE, Plaintiffs and Defendants hereby stipulate that defendants Anand D. Gala and Jonathan Litt shall be dismissed as to Plaintiffs' Seventh Cause of Action. Plaintiffs and Defendants further stipulate that paragraphs 5, 9, and 10 of Plaintiffs' Prayer for Relief in the Complaint shall be stricken. A proposed order and proposed copy of the Second Amended Complaint are attached hereto. IT IS SO STIPULATED.

Dated: February 25, 2011 SIDLEY AUSTIN LLP By: Geoffrey D. DeBoskey Heidi Larson Howell Attorneys for Defendants TACAZA, INC. dba FAMOUS DAVE'S, TACAZA II, INC. dba FAMOUS DAVE'S, ANAND D. GALA, and JONATHAN LITT Dated: February 25, 2011 FITZPATRICK, SPINI & SWANSTON By: B. James Fitzpatrick Attorneys for Plaintiffs MARCUS T. AREYANO, FRANK W. BARTLETT, GUADALUPE GONZALEZ, MARY PEARL RIVERA, BRIAN RIGGINS, JUDD ROGERS, DARREN CAMPBELL; VINCENT CLINE

ORDER

Pursuant to the parties' stipulation, and for good cause shown, it is hereby ordered that Plaintiffs may file a Second Amended Complaint eliminating defendants Anand D. Gala and Jonathan Litt, with prejudice, as to Plaintiffs' Seventh Cause of Action for Unfair Business Practices in Violation of California Business & Professions Code § 17200 et seq. and eliminating paragraphs 5, 9, and 10 of Plaintiffs' Prayer for Relief.

IT IS SO ORDERED.

20110302

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