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Simon V. Garcia, An Individual v. Gordon Trucking

July 14, 2011

SIMON V. GARCIA, AN INDIVIDUAL
PLAINTIFF,
v.
GORDON TRUCKING, INC., A CALIFORNIA CORPORATION, WHICH WILL TRANSACT BUSINESS IN CALIFORNIA AS L GORDON; STEVE GORDON, AN INDIVIDUAL; BOB GOLDBERG, AN INDIVIDUAL; AND DOES 1 THROUGH 20, INCLUSIVE,
DEFENDANTS.
CHRISTOPHER YANEZ AND EMMA YANEZ ON BEHALF OF THEMSELVES, ALL OTHERS SIMILARLY SITUATED, AND THE GENERAL PUBLIC,
PLAINTIFFS,
v.
GORDON TRUCKING, INC., A WASHINGTON CORPORATION, AND DOES 1 THROUGH 100, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER 9 MOTION FOR STAY AND APPOINTMENT OF INTERIM CLASS COUNSEL (DOC. 52)

MEMORANDUM DECISION AND ORDER RE PLAINTIFFS‟ MOTION FOR CONSOLIDATION OF PENDING ACTIONS AND APPOINTMENT OF INTERIM CLASS COUNSEL (DOC. 37)

I. INTRODUCTION

Before the court are two putative class actions filed against Gordon Trucking, Inc. ("Defendant"): (1) Simon Garcia ("Plaintiff Garcia") v. Defendant etal. (1:10-cv-324-OWW-SKO) ("Garcia "), and (2) Christopher Yanez and Emma Yanez ("Yanez Plaintiffs") v. Defendant etal. (1:11-cv-272-OWW-SMS) ("Yanez ").

Yanez Plaintiffs move (1) to consolidate the Garcia and Yanez lawsuits, and (2) for appointment of James R. Patterson and Allison H. Goddard ("Yanez Counsel") as interim class counsel. Yanez Doc. 37. Defendant and Plaintiff Garcia filed an opposition in the Yanez lawsuit (Yanez Docs. 41 and 42, respectively), to which Yanez Plaintiffs replied (Yanez Doc. 46).

Plaintiff Garcia moves (1) to stay the hearing on Yanez Plaintiffs‟ motion for consolidation and (2) alternatively, for appointment of S. Brett Sutton ("Garcia Counsel") as interim class counsel. Garcia Doc. 52. Yanez Plaintiffs filed a motion to intervene in the Garcia Lawsuit and opposition to the motion to stay (Garcia Doc. 58), to which Plaintiff Garcia replied (Garcia Doc. 59).

The motions were heard July 11, 2011.

II.BACKGROUND

A.Garcia Lawsuit

The Garcia lawsuit against Defendant and individual Defendants Steve Gordon, Bob Goldberg, and Does 1 to 20 was filed in this court on February 23, 2010. Garcia Doc. 1. Plaintiff Garcia filed a First Amended Complaint on July 7, 2010 (Garcia Doc. 28) and a Second Amended Complaint ("SAC") on July 22, 2010 (Garcia Doc. 33).

The Garcia action seeks to represent the following putative classes:

a.All similarly situated persons employed by GTI who were driving tractor-trailer combinations and performing services related thereto within the State of California at any time within the Relevant Time Period, and were compensated on a per-mile basis for at least part of their compensation. This putative class will be referred to herein collectively as the "CALIFORNIA EMPLOYEES‟.

b.All similarly situated persons employed by GTI who were driving tractor-trailer combinations and performing services related thereto within any State excepting the State of California at any time within the Relevant Time Period, and were compensated on a per-mile basis for at least part of their compensation. This putative class will be referred to herein collectively as the "NATIONWIDE EMPLOYEES‟.

Garcia Doc. 33, ¶ 21.

The Garcia SAC asserts the following causes of action:

(1) First Cause of Action: Failure to pay minimum wages for all hours worked in violation of the Fair Labor Standards Act ("FLSA") (29 U.S.C. § 206);

(2) Second Cause of Action: Failure to pay minimum wages for all hours worked in violation of California Labor Code §§ 221-223, 1194, 1194.2, and 1197 and Industrial Welfare Commission Wage Order 9, § 11;

(3) Third Cause of Action: Failure to provide mandated meal periods or to pay an additional hour of wages in violation of California Labor Code §§ 226.7 and 512 and Industrial Welfare Commission Wage Order 9;

(4) Fourth Cause of Action: Failure to provide mandated rest periods or to pay an additional hour of wages in violation of California Labor Code §§ 226.7 and 512 and Industrial Welfare Commission Wage Order 8, § 11;

(5) Fifth Cause of Action: Failure to issue mandated accurate itemized wage statements in violation of California Labor Code §§ 226, 226.6, 1174, 1174.5, and 1175 and Industrial Welfare Commission Wage Order 9;

(6) Sixth Cause of Action: Failure to reimburse business expenses in violation of California Labor Code § 2802 and Industrial Welfare Commission Wage Order 9;

(7) Seventh Cause of Action: Failure to timely pay wages due at termination in violation of California Labor Code §§ 201, 202, and 203;

(8) Eighth Cause of Action: Violation of unfair competition law, California Business and Professions Code §§ 17200 et seq.; and

(9) Ninth Cause of Action: Recovery under the Labor Code Private Attorneys General Act of 2004.

Garcia Doc. 33. In Garcia , Plaintiff seeks to certify the First Cause of Action as a collective action under 29 U.S.C. § 216(b), for all acts within three years preceding the original Complaint and through the time of trial. Id. at ¶¶ 4-5. Plaintiff Garcia seeks to certify the Second through Eighth Causes of Action as a class action under Federal Rule of Civil Procedure 23, for all acts within four years preceding the original Complaint and through the time of trial. Id. at ¶¶ 4,6.

B.Yanez Lawsuit

The Yanez action was filed in the Superior Court of California, County of San Diego on October 12, 2010. Yanez Doc. 1, Ex. A. Defendant removed the case to the United States District Court for the Southern District of California on November 12, 2010. Yanez Doc. 1. Upon the parties‟ joint motion (Yanez Doc. 24), the Southern District transferred Yanez to this court on February 16, 2011 (Yanez Doc. 27).

The Yanez lawsuit is brought on behalf of the following putative class:

All persons who have been employed by Defendant as Over the Road Drivers in the State of California at any time during the Class Period.

Yanez Doc. 1, Ex. A, ΒΆ 1. The "Class Period" is the four-year period prior to filing, through disposition ...


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