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Rosemary Cohorst, On Behalf of Themselves v. Bre Properties

August 5, 2011

ROSEMARY COHORST, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
BRE PROPERTIES, INC.; L1 , INC; LEVEL ONE, LLC; AND REAL PAGE, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jeffrey T.Miller United States District Judge

ORDER ADOPTING, AND DENYING OBJECTIONS TO, REPORT AND RECOMMENDATION RE: DENIAL OF MOTION TO INTERVENE; HOLDING DENIAL OF MOTION FOR RECONSIDERATION

Proposed Intervenor, Luminita Roman ("Roman"), objects to the Report and Recommendation by Special Master Re: Motion to Intervene by Proposed Intervenor - Plaintiff Luminita Roman ("R & R") and seeks reconsideration of this court's Preliminary Approval Order. (Ct. Dkt. 26). Plaintiffs Rosemary Cohorst, Charmaine Griffith, and Deidre Quenell (collectively "Plaintiffs") and Defendants BRE Properties, Inc. ("BRE") and Level One, LLC ("Level One") oppose the Objections. The R & R, expressly incorporated herein, thoroughly and thoughtfully analyzed Roman's claims, the evidentiary record, and recommended the denial of the motion to intervene in its entirety. Having carefully considered the R & R, the court record, the arguments of counsel, and applicable authorities, the court adopts the R & R in its entirety, denies the Objections to the R & R, and denies the Motion for Reconsideration.

BACKGROUND

The court adopts the following background section, as primarily set forth in the R & R. (Ct. Dkt. 35).

PROCEDURAL HISTORY OF THE ROMAN ACTION

Roman v. BRE Properties, Inc. was originally filed in the Los Angeles Superior Court on May 20, 2010. On June 9, 2010, the Superior Court designated the Roman action complex and served a "Notice of Complex Designation" on June 17, 2010. On June 30, 2010, Superior Court Judge Ann I. Jones entered an "Initial Status Conference Order" which stayed the proceedings to assist the Court and the parties in managing the complex case. Judge Jones set an initial status conference on October 8, 2010 and ordered the parties to meet and confer and file a joint report which included "whether additional parties are likely to be added."

On October 1, 2010, Roman and BRE filed a "Joint Initial Status Conference Report" with Superior Court Judge Jane Johnson to whom the Roman case had been reassigned. The report reflects that counsel for Roman and BRE had previously met and had discussed that a number of other potential parties to the case were identified. The initial status conference was held before Judge Johnson who continued the stay on discovery except the stay was lifted for discovery designed to identify potential additional parties to the Roman action.

On November 12, 2010, counsel for BRE provided Roman's counsel with a declaration by Tyler L. Kemmer regarding BRE's telephone call intake practices including the involvement with alleged recording of telephone calls from its customers by Level One, including telephone calls made by Roman in April 2010 regarding BRE's Alessio Property in Los Angeles (Paragraph No. 14). Mr. Kemmer was the Vice President of Operations Management for BRE Properties, Inc. The Special Master requested a copy of the declaration on June 3, 2011 from Attorney Evan Wooten since it was referred to by counsel for Roman in the Ex Parte application.

On December 9, 2010, BRE filed notices of Related Case in Roman and Cohorst state court actions which states that the Cohorst case was filed on or about November 17, 2010 in the San Diego Superior Court and was assigned to Judge Robert P. Dahlquist in the North County Division. The Notice of Related Case also states that both actions assert purported violations of California Penal Code section 630, et seq. asserted by California residents in connection with the alleged recording of telephone calls regarding the rental of BRE residential properties.

On January 3, 2010, Judge Johnson ordered the Roman and Cohorst actions related, which was served on Roman's counsel by mail on January 5, 2011. However, on December 27, 2010, Level One had removed the Cohorst action to the Federal Court in San Diego mooting Judge Johnson's order finding the case related.

On January 7, 2011, Roman and BRE filed a "Joint Status Conference Report" with Judge Johnson which stated that Level One had removed the Cohorst action to Federal Court and that, "Plaintiff is considering amending the complaint to add additional business entities as DOE Defendants."

On January 26, 2011, Roman served counsel for BRE with an Amendment to her Complaint to substitute Level One for Defendant DOE 2 as well as another amendment adding Multi-Family Technology Solutions, Inc. as an additional Defendant.

On April 11, 2011, Judge Johnson held a status conference in the Roman action where the Court was informed that Level One intended to remove the Roman action to Federal Court in Los Angeles. Judge Johnson [and counsel for Roman] was also informed that a settlement had been reached in the Cohorst action. Judge Johnson continued the existing stay on discovery and set a further status conference for April 26, 2011.

On April 11, 2011, Roman filed a Request for Dismissal of Level One from the Roman action, which was entered the same day. On April 12, 2011, Level One, without knowledge of the dismissal, removed ...


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