United States District Court, N.D. California
ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY
INJUNCTION RE: DKT. NO. 243
A WESTMORE United States Magistrate Judge.
24, 2019, Plaintiffs filed an ex parte application for a
temporary restraining order barring contact with class
members regarding the lawsuit and a motion for preliminary
injunction. (Pls.' Mot., Dkt. No. 243.)
review of the moving papers, the Court finds this matter
suitable for resolution without oral argument pursuant to
Civil Local Rule 7-1(b), and, for the reasons set forth
below, DENIES Plaintiffs' motion for preliminary
Shaon Robinson, Sean Clark, Saul Prado, and James Robert
assert individual and class action claims against Defendant
The Chef's Warehouse West Coast, LLC, alleging wage and
hour violations, as well as various discrimination claims.
The proposed class consists of “[a]ll persons employed
by Defendant [ ] in the State of California as a Driver or
Driver Trainer at any time on or after October 26,
2011.” (Fifth Am. Compl., Dkt. No. 183-1 at 5 ¶
2019, Defendant decided to offer individual settlements to
putative class members who were former drivers. (Def.'s
Opp'n at 3; Decl. of Alejandro Gonzalez, “Gonzalez
Decl., ” Dkt. No. 251-2 ¶ 2.) Defendant claims to
have not contacted current employees to settle their claims.
(Def.'s Opp'n at 3.) In preparing to offer
settlement, Defendant contracted with attorney Alejandro
Gonzalez, and created a call list spreadsheet containing
contact information for approximately 100 former drivers.
(Def.'s Opp'n at 3; Gonzalez Decl. ¶¶ 1,
5.) Defendant provided the callers with the spreadsheet,
which was accessible to all of the callers to update in real
time. (Gonzalez Decl. ¶ 5.) Some of the individuals on
the spreadsheet were marked “do not call.”
Id. Gonzalez was unaware of the reasons the
individuals were designated “do not call.”
20, 2019, the callers began making calls. (Def.'s
Opp'n at 4; Gonzalez Decl. ¶ 6.) The callers were
provided with a script to follow, English and Spanish
versions of a release agreement, and answers to frequently
asked questions. (Def.'s Opp'n at 3; Gonzalez Decl.
contends that the script required callers to first state that
they worked for the Chefs' Warehouse and the purpose of
the call. (Def.'s Opp'n at 3; Gonzalez Decl. ¶
4.) The script also purportedly required the callers to
confirm that individuals were not represented by counsel
prior to continuing the conversation beyond a brief
introduction. Ids. Per the script, the callers
provided background information regarding the lawsuit,
identified the putative class action claims, and the upcoming
class certification hearing date. (Gonzalez Decl. ¶ 4.)
The script required the callers to make it clear that there
was no obligation to accept the offered settlement.
Id. It also made clear that acceptance of the
settlement offer meant giving up any claims in the case, and
instructed individuals to read the release carefully before
exercising their voluntary right to accept. Id.
Also, upon request, the callers provided contact information
for Plaintiffs' counsel. Id.
also prepared an email to send to the former drivers if they
were not reachable by telephone or as follow-up to telephone
calls, which was in both English and Spanish. (Def.'s
Opp'n at 3; Gonzalez Decl. ¶ 3.)
claims that shortly after calling commenced, the formatting
of the spreadsheet was altered by one of the callers.
(Def.'s Opp'n at 4; Gonzalez Decl. ¶ 6.)
Gonzalez attempted to reformat the document, and
inadvertently removed the “do not call” tag from
Plaintiff Prado. (Gonzalez Decl. ¶ 6; Def.'s
Opp'n at 4.) On June 20, 2019, at 11:02 PM EDT (8:02 PM
PDT), Gonzalez left Prado a voicemail message regarding the
proposed settlement. (Gonzalez Decl. ¶ 6; Decl. of
Stephen Noel Ilg, “Ilg Decl., ” Dkt. No. 244
¶ 20, Ex. 8; Decl. of Saul Prado, “Prado Decl.,
” Dkt. No. 245 ¶ 3.) Prado called Gonzalez back at
11:33 PM EDT (8:33 PM PDT) and left a voicemail asking
Gonzalez to return his call. (Gonzalez Decl. ¶ 6, Ex.
21, 2019, at 12:03 PM EDT (9:02 AM PDT), Gonzalez received
another call from Prado, which Gonzalez again missed.
(Gonzalez Decl. ¶ 7.) Gonzalez called Prado that same
afternoon at 12:39 PM EDT (9:39 AM PDT), and reached him.
(Gonzalez Decl. ¶ 7; Prado Decl. ¶ 3.) It is
undisputed that Gonzalez identified himself as an attorney
for Defendant. (Prado Decl. ¶ 3.) Defendant contends
that, in accordance with the script, Gonzalez introduced
himself and, before engaging in settlement discussions, asked
Prado if he was represented by counsel. (Def.'s Opp'n
at 4; Gonzalez Decl. ¶ 7.) Defendant contends that Prado
said that he was not represented, so Gonzalez continued with
the conversation. Ids. During the course of the six
minute and twenty-nine second conversation, Prado stated that
he sat for his deposition and that he wanted the case to be
over. (Gonzalez Decl. ¶ 7.) Based on these comments,
Gonzalez claims to have again asked if Prado was represented
by counsel and Prado again denied being represented.
Id. Prado's initial declaration did not address
whether he was asked if he was represented, but his second
declaration filed in support of Plaintiffs' reply brief
states that he was questioned about the case after having
informed Gonzalez that he had his own attorney. (See,
generally, Prado Decl.; 2d. Decl. of Saul Prado,
“2d. Prado Decl., ” Dkt. No. 251-1 at 14 ¶
Gonzalez was speaking with Prado, Chris Parkin, Vice
President of Litigation for The Chefs' Warehouse, was
reviewing the spreadsheet and noticed that Prado was called.
(Gonzalez Decl. ¶ 8.) Parkin immediately notified
Gonzalez that Prado was a named plaintiff who should not have
been contacted under any circumstances. Id. Upon
hearing this, Gonzalez immediately discontinued the call.
Id. Gonzalez claims that he did not know that Prado
was a named plaintiff prior to being informed by Parkin.
(Def.'s Opp'n at 4; Gonzalez Decl. ¶ 8.) Later
that day, Prado called Gonzalez again, but Gonzalez declined
further discussions, and the phone call lasted less than one
minute. (Gonzalez Decl. ¶ 9, Ex. B.) Defendant contends
that neither it nor anyone working for it, including outside
counsel or contract attorneys, has contacted Prado or any
other named plaintiff since. (Gonzalez Decl. ¶ 9;
Def.'s Opp'n at 4.)
21, 2019, Gonzalez called former driver Jonathan Villegas and
left a voicemail message. (Def.'s Opp'n at 4;
Gonzalez Decl. ¶ 10.) Villegas did not call back, so, on
June 22, 2019, Gonzalez sent a pair of emails to Villegas,
one through Adobe EcoSign containing a proposed settlement
agreement and the second from his own email account
explaining the Adobe EcoSign email in both English and
Spanish and to assure the recipient that it was not spam.
(Gonzalez Decl. ¶ 10.) Later that day, due to a
purported technical error, Gonzalez sent Villegas two emails
at 9:46 PM EDT and 9:48 PM EDT. Id. All of the
emails Villegas received were in both English and Spanish.
Id. On June 24, 2019, Gonzalez spoke with Villegas,
and ascertained that he spoke fluent English. (Gonzalez Decl.
¶ 10.) During the call, Villegas asked for
Plaintiff's counsel's contact information, which
Gonzalez provided. (Def.'s Opp'n at 5.)
24, 2019, Plaintiffs' counsel Stephen Ilg contacted
Gonzalez to discuss the settlement offered to Prado.
(Gonzalez Decl. ¶ 11.) Gonzalez told Ilg that he was a
contract attorney for the Chefs' Warehouse and confirmed
that he spoke with Prado the previous week. Id.
Shortly thereafter, Ilg called Gonzalez again and asked what
he had discussed with Defendant's outside counsel Michele
Beilke. Id ...