Stevenson v. Dollar Tree Stores, Inc.

Filing 34

ORDER signed by Judge Kimberly J. Mueller on 7/26/12 GRANTING the 33 Stipulation to Strike Attorneys' Fees Related To Labor Code Section 226.7 Claim, jointly filed by Plaintiff Laurence Stevenson ("Stevenson") and Defendant Dollar Tree Stores, Inc. (Becknal, R)

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1 Counsel of Record listed on following page 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAURENCE E. STEVENSON, an individual; on behalf of himself and all others similarly situated current and former employees, 12 Plaintiff, 13 v. STIPULATION TO STRIKE ATTORNEYS’ FEES RELATED TO LABOR CODE SECTION 227.6 CLAIM; ORDER COMPLAINT FILED: April 22, 2011 TRIAL DATE: No date set. 14 15 Case No. 2:11-CV-01433-KJM -CKD DOLLAR TREE STORES, INC., a Virginia corporation; and DOES 1 through 50, Inclusive, 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 Stipulation To Strike Attorneys’ Fees Related To Labor Code Section 227.6 Claim; Order 2:11-CV-01433-KJM -CKD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 MAUREEN E. MCCLAIN, Bar No. 062050 Email: mmcclain@littler.com CONSTANCE E. NORTON, Bar No. 146365 Email: cnorton@littler.com AIMÉE E. AXELROD, Bar No. 255589 Email: aaxelrod@littler.com LITTLER MENDELSON A Professional Corporation 650 California Street 20th Floor San Francisco, CA 94108.2693 Telephone: 415.433.1940 Facsimile: 415.399.8490 Attorneys for Defendant DOLLAR TREE STORES, INC. DYLAN POLLARD, Bar No. 180306 Email: dpollard@pollardbailey.com MATT C. BAILEY, Bar No. 218685 Email: mbailey@pollardbailey.com POLLARD BAILEY 9701 Wilshire Blvd., 10th Floor Beverly Hills, CA 90212 Telephone: (310) 854-7650 Facsimile: (310) 492-9934 MIKE ARIAS, Bar No. 115385 Email: marias@aogllp.com ALFREDO TORRIJOS, Bar No. 222458 Email: atorrijos@aogllp.com ARIAS, OZZELLO & GIGNAC, LLP 6701 Center Drive West, 14th Floor Los Angeles, CA 90045 Telephone: (310) 670-1600 Facsimile: (310) 670-1231 Attorneys for Plaintiff Laurence E. Stevenson 21 22 23 24 25 26 27 28 Stipulation To Strike Attorneys’ Fees Related To Labor Code Section 227.6 Claim; Order 2:11-CV-01433-KJM -CKD 1 2 TO THE HONORABLE COURT AND THE CLERK OF THE COURT: 3 Plaintiff Laurence Stevenson (“Plaintiff”) and Defendant Dollar Tree Stores, Inc. 4 (“Defendant”), by and through their respective counsel of record, hereby stipulate and request that 5 the Court enter an Order as follows: 6 7 8 9 WHEREAS on or about April 22, 2011, Plaintiff filed a Complaint in the Sacramento County Superior Court, Case No. 34-2011-00101994 (“State Action”); WHEREAS on or about May 26, 2011, Defendant removed the State Action to this Court. After denying Plaintiff’s motion to remand, this Court retained jurisdiction over the Action; 10 WHEREAS the First Cause of Action in the Complaint purports to seek remedies for 11 Defendant’s alleged failure “to provide Plaintiff and members of the proposed class with proper off- 12 duty meal periods or otherwise compensate them for missed meal periods,” in violation of, inter alia, 13 Labor Code sections 226.7 and 512 [Complaint ¶¶ 24-28], and in particular, alleges in that 14 “[p]ursuant to IWC Wage Order Seven (8 CCR § 11070), as well as California Labor Code §§ 200, 15 203, 226.7, 512, 1194, and 1198, Plaintiff and class members are thus entitled to recover … 16 attorneys’ fees, and costs of suit.” See Complaint ¶ 18; 17 WHEREAS Defendant’s Answer to Plaintiff’s Complaint also contains a demand for 18 attorney’s fees, which states in relevant part “that judgment be entered in its favor and it be awarded 19 its costs, including attorneys' fees and such further relief as this Court deems just and appropriate.” 20 See Answer to Complaint, at 5:13-15 (emphasis added); and, 21 WHEREAS during the pendency of this Action, on or about April 30, 2012, the 22 California Supreme Court issued an opinion concluding that “neither section 1194 nor section 218.5 23 authorizes an award of attorney's fees … on a section 226.7 claim” for breaks. See Kirby v. Immoos 24 Fire Protection, Inc., 53 Cal. 4th 1244, 1248 (2012). 25 26 27 28 In light of the foregoing, IT IS HEREBY STIPULATED by and between Plaintiff and Defendant, through their respective counsel of record, as follows: 1. That reference to “Labor Code § 1194” and “attorneys’ fees and costs of suit” are hereby stricken from Paragraph 28 of the Complaint as follows: Stipulation To Strike Attorneys’ Fees Related To Labor Code Section 227.6 Claim; Order 1. 2:11-CV-01433-KJM -CKD 1 4 Pursuant to IWC Wage Order Seven (8 CCR § 11070), as well as California Labor Code §§ 200, 203, 226.7, 512, 1194, and 1198, Plaintiff and class members are thus entitled to recover the unpaid balance of meal period pay owed by Defendant, plus interest, and waiting time penalties, attorneys’ fees, and costs of suit. 5 2. 2 3 6 That Defendant is not entitled to recover attorney’s fees in defense of Plaintiff’s claims under California Labor Code sections 218.5 or 1194; 3. 7 Notwithstanding the foregoing, the Parties reserve the right to seek attorneys’ 8 fees under other applicable claims or statutes plead in the Complaint, and to oppose such requests. 9 Further, the parties’ stipulation does not prevent the Parties from raising and opposing other 10 arguments regarding the impact of Kirby on other claims, defenses and/or remedies sought by the 11 Parties. 12 4. Both parties reserve their right to re-raise the issues addressed in this 13 Stipulation in the event future legal developments so warrant. 14 IT IS SO STIPULATED. 15 16 Dated: July 24, 2012 Respectfully submitted, 17 /s/Constance E. Norton MAUREEN E. MCCLAIN CONSTANCE E. NORTON AIMEE E. AXELROD LITTLER MENDELSON, P.C. A Professional Corporation 18 19 20 21 Attorneys for Defendant DOLLAR TREE STORES, INC. 22 23 24 25 26 27 28 LITTLER MENDELSON A PROFESSIONAL CORPORATION 650 California Street 20th Floor San Francisco, CA 94108.2693 415.433.1940 Stipulation To Strike Attorneys’ Fees Related To Labor Code Section 227.6 Claim; Order 2. 2:11-CV-01433-KJM-CKD 1 2 Dated: July 24, 2012 Respectfully submitted, 3 /s/ Alfredo Torrijos DYLAN POLLARD MATT C. BAILEY POLLARD BAILEY 4 5 6 MIKE ARIAS ALFREDO TORRIJOS ARIAS, OZZELLO & GIGNAC, LLP 7 8 Attorneys for Plaintiff LAURENCE E. STEVENSON 9 10 THE FILER OF THE DOCUMENT ATTESTS THAT THE CONTENT OF THIS 11 DOCUMENT IS ACCEPTABLE TO ALL PERSONS REQUIRED TO SIGN THIS 12 DOCUMENT. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON A PROFESSIONAL CORPORATION 650 California Street 20th Floor San Francisco, CA 94108.2693 415.433.1940 Stipulation To Strike Attorneys’ Fees Related To Labor Code Section 227.6 Claim; Order 3. 2:11-CV-01433-KJM-CKD 1 ORDER 2 3 FOR GOOD CAUSE SHOWN, the Stipulation to Strike Attorneys’ Fees Related To Labor 4 Code Section 226.7 Claim, jointly filed by Plaintiff Laurence Stevenson (“Stevenson”) and 5 Defendant Dollar Tree Stores, Inc. (“Defendant”) is hereby GRANTED as follows: 1. 6 7 That reference to “Labor Code § 1194” and “attorneys’ fees and costs of suit” are hereby stricken from Paragraph 28 of the Complaint as follows: 10 Pursuant to IWC Wage Order Seven (8 CCR § 11070), as well as California Labor Code §§ 200, 203, 226.7, 512, 1194, and 1198, Plaintiff and class members are thus entitled to recover the unpaid balance of meal period pay owed by Defendant, plus interest, and waiting time penalties, attorneys’ fees, and costs of suit. 11 2. 8 9 12 That Defendant is not entitled to recover attorney’s fees in defense of Plaintiff’s claims under California Labor Code sections 218.5 or 1194; 3. 13 Notwithstanding the foregoing, the Parties reserve the right to seek attorneys’ 14 fees under other applicable claims or statutes plead in the Complaint, and to oppose such requests. 15 Further, the parties’ stipulation does not prevent the Parties from raising and opposing other 16 arguments regarding the impact of Kirby on other claims, defenses and/or remedies sought by the 17 Parties. 18 4. Both parties reserve their right to re-raise the issues addressed in this 19 Stipulation in the event future legal developments so warrant. 20 PURSUANT TO STIPULATION, IT IS SO ORDERED. 21 DATED: July 26, 2012. 22 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 LITTLER MENDELSON A PROFESSIONAL CORPORATION 650 California Street 20th Floor San Francisco, CA 94108.2693 415.433.1940 Stipulation To Strike Attorneys’ Fees Related To Labor Code Section 227.6 Claim; Order 4. 2:11-CV-01433-KJM-CKD

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