Martinez et al v. Antique & Salvage Liquidators, Inc.

Filing 94

ORDER RE 92 STIPULATION for Approval of Settlement. Signed by Magistrate Judge Howard R. Lloyd on 10/26/11. (hrllc1, COURT STAFF) (Filed on 10/26/2011)

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ADAM WANG, Bar No. 201233
ADAM PEDERSEN, Bar No. 261901
LAW OFFICES OF ADAM WANG
12 S First Street, Suite 708
San Jose, CA 95113
Tel: [phone]
Fax: [phone]

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** E-filed October 26, 2011 **

Attorney for Plaintiffs

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UNITED STATES FEDERAL COURT

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NOTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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EDWIN MARTINEZ, ROGER LINDOLFO, Case No.: C09-997 HRL
WILMER RUIZ, GABRIEL FRANCO,
OSCAR RODRIGUEZ, CARLOS AVILA,
STIPULATION FOR APPROVAL OF
GUSTAVO MEJIA and AMADO MARTINEZ, SETTLEMENT
(AS MODIFIED BY THE COURT)
Plaintiffs,
vs.
ANTIQUE & SALVAGE LIQUIDATORS,
INC. dba ASSET SERVICES AND
LIQUIDATORS aka ASL RECYCLING aka
ASL, AMI SOUTHERN CALIFORNIA, INC.,
AMERICAN METAL AND IRON, INC.,
DIMOND METALS, INC., BIG H
ENTERPRISES, INC., HOWARD MISLE and
DOES 1-10
Defendants
Plaintiffs, EDWIN MARTINEZ, ROGER LINDOLFO, WILMER RUIZ, GABRIEL

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FRANCO, OSCR RODRIGUEZ, CARLOS AVILA, GUSTAVO MEJIA and AMADO

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MARTINEZ, and Defendants ANTIQUE & SALVAGE LIQUIDATORS, INC. (ASL) and

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STIPULATION FOR APPROVAL OF SETTLEMENT

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HOWARD MISLE1, through their respective counsel, hereby stipulate for the approval by this

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Court of the settlement pursuant to California Labor Code § 26999 (l) as follows:

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1.

On March 6, 2009, Plaintiffs first filed their original Complaint against Defendant

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Antique & Salvage Liquidators, Inc. (ASL) to recover unpaid wages for violation of state and

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federal overtime law under California Labor Code § 510 and the Fair Labor Standards Act, 29

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U.S.C. § 207 (first and second causes of action); failure to provide meal and rest periods in

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violation of California Labor Code § 226.7 (third cause of action); failure to pay wages due and

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waiting time penalties in violation of California Labor Code § 203 (fourth cause of action);

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violation of California Business and Professions Code § 17200 (fifth cause of action); failure to
provide proper pay statements in violation of California Labor Code § 226 (sixth cause of
action).
2.

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On February 11, 2010, Plaintiffs filed their First Amended Complaint (FAC),

alleging an additional claims for civil penalties under California Labor Code § 558 pursuant to
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California Labor Code Private Attorney General’s Act, § 2699, et seq. (PAGA)2.

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3.

have only one year statute of limitations, and the PAGA claims dated back to March 6, 2009.
(Dkt. No. 70).

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On February 8, 2011, this Court entered a ruling that all PAGA civil penalties

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On December 18, 2008, the Plaintiffs were laid off from ASL, and ASL stopped

doing business shortly thereafter.

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On March 29, 2011, parties reach a Settlement Agreement as follows:

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a.

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and Plaintiffs’ counsel, of which each Plaintiff will receive $1,000, and

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Plaintiffs’ counsel will receive $24,500.

Individual Defendant Howard Misle will pay total $32,500 to 8 Plaintiffs

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All other Defendants, AMI SOUTHERN CALIFORNIA, INC., AMERICAN METAL AND
IRON, INC., DIMOND METALS, INC., BIG H ENTERPRISES, INC. ,have been previously
dismissed.
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On March 29, 2010, Plaintiffs subsequently filed a Second Amended Complaint, correcting
certain omissions and errors in FAC.
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STIPULATION FOR APPROVAL OF SETTLEMENT

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b.

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paid to 8 Plaintiffs, respectively: (i) $17,427 for Oscar Peralta; (ii) $14,671.50

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for Wilmer Ruiz; (iii) $18,553.50 for Carlos Avila; (iv) $15,436.01 Amado

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Martinez; (v) $18,553.50 for Gabriel Franco; (vi) $14,671.50 for Edwin O.

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Martinez; (vii) $15,395.50 for Roger Lindolfo; (viii) $18,553.50 for

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Gustavo Mejia.

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In addition, parties stipulate to a judgment against ASL for amounts to be

This settlement extinguishes all claims for civil penalties under PAGA by

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any employee, whether a party to this action or not, but would not bar any employee of

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ASL who is not a party to this case from bringing any valid individual claims under the

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Labor Code for wages and any statutory claims.
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A copy of the Settlement Agreement is attached hereto as Exhibit A; and

form of the Stipulated Judgment as Exhibit B.
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Pursuant to PAGA, California Labor Code § 26999 (l), parties are required to

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seek approval of the dismissal of PAGA claims in this settlement. According to the terms of the

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Settlement Agreement, although this Settlement would dismiss the wage portion of the civil

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penalties under Labor Code § 558, absent employees’ right to pursue their unpaid wages are

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preserved have not been compromised. Therefore the Settlement Agreement would only

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extinguish penalties against ASL the recovery of which is not realistic as ASL has gone out of

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business since December 2008. While the individual Defendant Misle’s liability for penalty

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portion of claims under Labor Code § 558 was not decided by the Court (see Dkt. No. 80), there

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is substantial uncertainty as to whether Plaintiffs will be able to meet their burden to establish

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that under § 558 Misle’s involvement in the operations of ASL can be characterized as one that,

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while acting on behalf of ASL, had “violated” or having “caused to be violated” Labor Code

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giving rise to the claims as alleged in this case. As such, parties believe that the dismissal of the

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PAGA claims for civil penalties is a reasonable compromise.

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STIPULATION FOR APPROVAL OF SETTLEMENT

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The Court is authorized to approve a settlement where , like here, no monetary

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amount is required for PAGA civil penalties claims. See Nordstrom Commission Case, 186

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Cal.App.4th 576, at 589 (2010) (when an otherwise reasonable and fair settlement is reached

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that disposes of claims for civil penalties under PAGA, parties are not required to allocate any

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portion of the proposed Settlement for PAGA penalties).

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10.

Therefore, parties request that the Court approve the Settlement Agreement as

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attached hereto as Exhibit A; and enter the Stipulated Judgment against ASL as attached hereto

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as Exhibit B.

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Parties agree this Court should retain its jurisdiction over this matter for the

purpose of enforcing the Settlement Agreement. for a period of six months following the entry of judgment.

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Dated: May 24, 2011

By: /s/ Adam Wang
.
Adam Wang
Attorney for Plaintiffs

Dated: May 24, 2011

By: /s/ Elizabeth Pappy
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Elizabeth Pappy
Attorney for Defendants

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___________________________________________

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[PROPOSED] ORDER
Pursuant to parties’ stipulation, having considered the terms of the Settlement

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Agreement, this Court finds the Settlement Agreement disposing PAGA claims is fair and
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reasonable.
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THEREFORE, the Settlement Agreement disposing PAGA penalty claims is hereby
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APPROVED.
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STIPULATION FOR APPROVAL OF SETTLEMENT

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A Judgment will be entered against ANTIQUE & SALVAGE LIQUIDATORS, INC. as
stipulated by parties.

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This Court will retain jurisdiction for the purpose of enforcing the Settlement Agreement.

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IT IS SO ORDERED.

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October 26
Dated: __________, 2011

By:

_____________.
Howard R. Lloyd
United States Magistrate Judge

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STIPULATION FOR APPROVAL OF SETTLEMENT

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C09-00997 HRL Notice will be electronically mailed to:

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Adam Wang
Adam Pederson
Donn Waslif
Elizabeth Marie Pappy
Mark B. Fredkin

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For the Northern District of California

United States District Court

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[e-mail]
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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.