Luna v. Davey Tree Surgery Company

• Court: District Court, N.D. California
• Decided: February 28, 2023
• Docket: 5:23-cv-00822
• Status: Unknown

Opinion

1 Brian D. Chase, Esq. (SBN 164109) bchase@bisnarchase.com 2 Ian M. Silvers, Esq. (SBN 247416) isilvers@bisnarchase.com 3 BISNAR|CHASE LLP 1301 Dove Street, Suite 120 4 Newport Beach, California 92660 Telephone: (949) 752-2999 5 Facsimile: (949) 752-2777 6 Richard C. Alpers, Esq. (SBN 254646) rca@alperslawgroup.com 7 ALPERS LAW GROUP, INC P.O. Box 154 8 Aptos, CA 95001 Telephone: (831) 240-0490 (831) 240-0490 9 Facsimile: (855) 870-1129 10 Attorneys Plaintiff and Putative Class 11 [Additional counsel information on signature page] 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 15 ANGEL LUNA, individually, and on behalf of Case No. 5:23-cv-00822 16 all others similarly situated, 17 Plaintiff, STIPULATION AND ORDER DISMISSING FIRST THROUGH 18 v. SEVENTH CAUSES OF ACTION WITHOUT PREJUDICE AND 19 DAVEY TREE SURGERY COMPANY, a REMANDING ACTION TO STATE Delaware Corporation, and DOES 1 through COURT 20 100, inclusive,, 21 Defendants. Action Filed: January 6, 2023 22 23 24 25 26 27 1 Plaintiff Angel Luna (“Plaintiff”) and Defendant Davey Tree Surgery Company (“Davey 2 Tree”) (together, the “Parties”), by and through their undersigned counsel of record, respectfully 3 stipulate as follows: 4 WHEREAS, on January 6, 2023, Plaintiff filed a class action complaint in Santa Cruz 5 County Superior Court of the State of California, captioned Luna v. Davey Tree Surgery Company, 6 et al., Case No. 23CV00040, alleging the following eight causes of action: (1) failure to pay wages 7 for all hours worked in violation of California Labor Code §§ 204, 218, 1194, and 1194.2; (2) 8 failure to pay overtime wages in violation of California Labor Code §§ 218, 510, and 1194; (3) 9 failure to provide mandatory meal-and-rest breaks in violation of California Labor Code §§ 226.7 10 and 512; (4) failure to reimburse business expenses in violation of California Labor Code § 2802; 11 (5) failure to provide accurate wage statements in violation of California Labor Code §§ 226 and 12 1174; (6) waiting time penalties under California Labor Code §§ 201-203; (7) violation of 13 California Business & Professions Code § 17200, et seq. (“UCL”); and (8) violation of California 14 Labor Code §§ 2698, et seq. (“PAGA”). 15 WHEREAS, Plaintiff filed the first seven causes of action on behalf of himself and 16 members of a putative class of “all individuals (a) who are currently or formerly employed by 17 Defendants and performed work in California as non-exempt hourly employees or similar job 18 position, job title, job code, job classification, or job description, and (b) who were subject to 19 Defendants’ illegal policies and practices as alleged herein during the Class Period,” defined as 20 “the four years prior to the filing of the original Complaint to the present including tolling.” Id. ¶ 21 38. 22 WHEREAS, on February 23, 2023, Davey Tree removed the action to this Court pursuant 23 to 28 U.S.C. §§ 1332(d), 1441, 1446, and 1453, and specifically the Class Action Fairness Act of 24 2005, based on the first through seventh causes of action. 25 WHEREAS, the parties met and conferred and agree that Plaintiff signed arbitration 26 agreements on April 29, 2019 and December 27, 2021, in which Plaintiff agreed to arbitrate—in 27 his individual capacity and not as a plaintiff or class member in any purported class or 1 compensation due and all claims against Davey Tree for any violation of any federal, state, or other 2 governmental law, statute, regulation or ordinance (the “Arbitration Agreements”). 3 WHEREAS, Plaintiff agrees that the Arbitration Agreements cover the first through 4 seventh causes of action asserted in his Complaint (both in terms of Plaintiff’s individual claims 5 and the putative class claims). 6 WHEREAS, Plaintiff accordingly seeks to dismiss his first through seventh causes of 7 action without prejudice as to both his alleged individual claims and the alleged claims of the 8 unnamed putative class members. 9 WHEREAS, Defendant agrees with such dismissal. 10 WHEREAS, to date, no class has been certified in this Action nor has any notice been 11 provided to other current or former employees of Davey Tree regarding Plaintiff’s putative class 12 claims. 13 WHEREAS, to date, the court has not entered any judgment following final approval of a 14 settlement. 15 WHEREAS no consideration, direct or indirect, is being provided to Plaintiff for the 16 dismissal. 17 WHEREAS, the Parties dispute the impact of the Arbitration Agreements on Plaintiff’s 18 remaining cause of action (the eighth cause of action) seeking to represent alleged “aggrieved 19 employees” under PAGA in the wake of the U.S. Supreme Court’s decision in Viking River 20 Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) (“Viking River”), the pending California Supreme 21 Court decision in Adolph v Uber Technologies, Inc. (2022) (Aug. 1, 2022, S274671) [2022 Cal. 22 Lexis 5021].), and the recent Appellate Court decision in Galarsa v. Dolgen California LLC, 2023 23 WL 2212196 (Cal.App. 5 Dist., 2023) (decision after remand in light of Viking River). 24 WHEREAS, Davey Tree expressly reserves the right to file a motion to compel arbitration 25 as to the claims asserted in the Complaint, if necessary, and Plaintiff agrees that he will not argue 26 or assert that Davey Tree has waived any right to arbitration with respect to the claims asserted in 27 the Complaint (including the PAGA claims asserted in the eighth cause of action) by entering into 1 WHEREAS, the Parties further met and conferred and agree that, upon dismissal of the 2 first through seventh causes of action (leaving only Plaintiff’s PAGA claim), the operative 3 complaint will no longer meet the jurisdictional requirements of the CAFA, making it appropriate 4 to remand this case back to state court. 5 WHEREAS, Davey Tree accordingly stipulates to remand this action back to Santa Cruz 6 County Superior Court, and the Parties jointly request that the Court issue an order regarding the 7 same. 8 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED UPON 9 THAT: 10 1.Plaintiff’s first through seventh causes of action are dismissed without prejudice to the 11 extent they are brought on an individual basis; 12 2.Plaintiff’s first through seventh causes of action are dismissed without prejudice to the 13 extent they are brought on behalf of a putative class; 14 3.Upon dismissal of Plaintiff’s first through seventh causes of action, the entire action 15 should be remanded back to the Superior Court of the State of California, County of Santa Cruz, 16 where it was originally filed. 17 IT IS SO STIPULATED. 18 [signatures follow on next page] 19 20 21 22 23 24 25 26 27 1 Dated: February 28, 2023 MAYER BROWN LLP 2 3 By: /s/ Ruth Zadikany Ruth Zadikany (SBN 260288) 4 rzadikany@mayerbrown.com Elisabeth M. Anderson (SBN 318326) 5 eanderson@mayerbrown.com 333 South Grand Avenue, 47th Floor 6 Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 7 Facsimile: (213) 625-0248 8 Charles E. Harris, II (pro hac vice forthcoming) 9 charris@mayerbrown.com 71 South Wacker Drive 10 Chicago, Illinois 60606 Telephone: (312) 782-0600 11 Facsimile: (312) 701-7711 12 Attorneys for Defendant DAVEY TREE SURGERY COMPANY 13 14 15 Dated: February 28, 2023 BISNAR | CHASE LLP / ALPERS LAW GROUP, INC. 16 17 By: /s/ Ian M. Silvers 18 Ian M. Silvers Attorneys for Plaintiff 19 20 21 22 23 24 25 26 27 1 ORDER 2 The Court, having read and considered the Stipulation, and finding good cause, hereby 3 orders as follows: 4 IT IS HEREBY ORDERED that: 5 1. Plaintiff’s first through seventh causes of action are dismissed without prejudice to the 6 extent they are brought on an individual basis; 7 2. Plaintiff’s first through seventh causes of action are dismissed without prejudice to the 8 extent they are brought on behalf of a putative class; and 9 3. The entire Action is remanded back to the Superior Court of the State of California, 10 County of Santa Cruz. 11 Dated: __F_e_b_r_u_a_ry_ _2_8_, _2_0 23 ________________________________ 12 Magistrate Judge Nathaneal M. Cousins 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27