Arellano v. Kellermeyer Building Service, LLC

Filing 49

ORDER: (1) Granting 48 Ex Parte Motion for Order Continuing Hearing Date; (2) Denying as Moot Ex Parte Motion to Continue Hearing Date; and (3) Denying Ex Parte Motion to File Supplemental Brief (ECF. No. 41 ). The hearing on Plaintiffs' motion for preliminary approval of class action settlement (ECF No. 22) and Ms. Portillo's motion to intervene (ECF No. 20) is continued to September 15, 2014 at 10:30 a.m. in Courtroom 4B. Signed by Judge Cynthia Bashant on 7/25/2014. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AGUSTIN A. ARELLANO, et al.,
Plaintiffs,

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v.
KELLERMEYER BUILDING
SERVICE, LLC,
Defendant.

Case No. 13-cv-0533-BAS(BGS)
ORDER:
(1) GRANTING EX PARTE
MOTION FOR ORDER
CONTINUING HEARING
DATE (ECF NO. 48);
(2) DENYING AS MOOT EX
PARTE MOTION TO
CONTINUE HEARING
DATE (ECF NO. 41); AND
(3) DENYING EX PARTE
MOTION TO FILE
SUPPLEMENTAL BRIEF
(ECF NO. 41)

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Pending before the Court is (1) an ex parte application filed jointly by

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Plaintiffs and Proposed Intervenor Venancia Portillo to continue the hearing on

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Plaintiffs’ motion for preliminary approval of class action settlement and Ms.

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Portillo’s motion to intervene (ECF No. 48); and (2) a separate ex parte motion

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filed by Ms. Portillo to continue the same hearing and for permission to file a

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supplemental brief in support of her motion to intervene (ECF No. 41).

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Having read and considered the moving papers, for the reasons set forth
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below, the Court GRANTS the ex parte motion to continue the hearing on

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Plaintiffs’ motion for preliminary approval of class action settlement and Ms.

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Portillo’s motion to intervene (ECF No. 48), DENIES AS MOOT Ms. Portillo’s ex

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parte motion to continue the same hearing (ECF No. 41), and DENIES Ms.

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Portillo’s ex parte motion to file a supplemental brief in support of her motion to

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intervene (ECF No. 41).

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I.

CONTINUANCE OF HEARING ON MS. PORTILLO’S MOTION TO

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INTERVENE & PLAINTIFFS’ MOTION FOR PRELIMINARY

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APPROVAL OF CLASS ACTION SETTLEMENT

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Plaintiffs and Ms. Portillo jointly filed an ex parte application to continue the

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hearing on Plaintiffs’ motion for preliminary approval of class action settlement

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(ECF No. 22) and Ms. Portillo’s motion to intervene (ECF No. 20). Plaintiffs and

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Ms. Portillo request a continuance of the hearing for sixty (60) days so that the

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parties can re-address the class action settlement in this matter in light of new

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developments in the parallel state matter pending in Alameda Superior Court

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(Portillo, et al. v. Kellermeyer Building Service, LLC, Case No. RG11558695

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(“Portillo”)). (ECF No. 48, Treglio Decl. at ¶¶ 6-12; ECF No. 48-1 at ¶ 3.) In

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Portillo, the class certification order was recently modified to include claims for

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locked-in meal periods and late meal periods, which significantly increases the

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potential damages in this action. (Id. at ¶¶ 6-9.) Plaintiffs’ counsel represents that

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he “considered this particular certification difficulty to be an important factor in

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settlement negotiations” in this matter. (Id. at ¶ 6.) Therefore, “the Settlement, as

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currently structured, has become problematic.” (Id. at ¶ 9.)

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Plaintiffs’ counsel further represents that he contacted counsel for Defendant

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and Ms. Portillo and that “both are amenable to not only continue this hearing, but

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to mediating the issues and possibly modifying the Settlement.” (Id. at ¶ 11; see

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also ECF No. 48-1 at ¶ 3.) Defendant’s counsel was unable to obtain his client’s

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approval, but stated his client “might be willing to stipulate to a 30 or 45-day
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continuance.” (Id.) Accordingly, for good cause shown, the Court GRANTS the

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ex parte application (ECF No. 48) and continues the hearing on Plaintiffs’ motion

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for preliminary approval of class action settlement (ECF No. 22) and Ms. Portillo’s

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motion to intervene (ECF No. 20) to September 15, 2014 at 10:30 a.m. in

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Courtroom 4B.
In light of this continuance, the Court DENIES AS MOOT Ms. Portillo’s

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earlier ex parte motion to continue the hearing (ECF No. 41).

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II.

PERMISSION TO FILE SUPPLEMENTAL BRIEF

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Ms. Portillo also moves ex parte for permission to file a supplemental brief

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requesting a stay of this litigation pending resolution of the Portillo matter and

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disqualification of counsel for the parties in this matter for ethical violations. (ECF

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No. 41, p. 1, ¶¶ 2-3.) Plaintiffs oppose Ms. Portillo’s ex parte request to file a

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supplemental brief because there are “no new facts or new law that give rise to [her]

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request for supplemental briefing.” (ECF No. 44 at p. 2.) Rather, Ms. Portillo’s

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motion is “part of a scheme to harass the Parties and to prevent timely resolution of

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Plaintiffs’ claims.” (Id.) Defendant opposes Ms. Portillo’s ex parte request to file a

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supplemental brief because she lacks standing and “she failed to mention or comply

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with the requirements for ex parte relief by showing there is an ‘emergency’

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necessitating such relief … and that ‘immediate and irreparable injury’ will result if

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the subject matter is heard as a regularly-noticed motion.” (ECF No. 45 at p. 1.)

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Defendant maintains that Ms. Portillo’s supplemental brief should be heard as a

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noticed motion. The Court agrees with Defendant.

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“Ex parte applications are a form of emergency relief that will only be

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granted upon an adequate showing of good cause or irreparable injury to the party

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seeking relief.” Clark v. Time Warner Cable, 2007 WL 1334965, at *1 (C.D. Cal.

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May 3, 2007) (citing Mission Power Engineering Co. v. Continental Cas. Co., 883

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F.Supp. 488, 492 (C.D.Cal. 1995)). “Moreover, it must be established that the

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moving party is without fault in creating the crisis or that the crisis occurred as a
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result of excusable neglect.” Id. (citing Mission Power, 883 F.Supp. at 492).

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Ms. Portillo filed her motion to intervene on January 28, 2014. (ECF No.

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20.) The motion to intervene was fully briefed by February 20, 2014. Five months

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later, Ms. Portillo seeks to file a supplemental brief in support of her motion to

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intervene which requests a stay of this action and a disqualification of counsel. In

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her motion to intervene and accompanying reply, Ms. Portillo stated her intent,

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upon being permitted to intervene in this matter, to file a noticed motion to dismiss

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or stay this action and to file a noticed motion to disqualify Plaintiffs’ counsel and

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preclude them from any further participation in this action (ECF No. 20-1 at pp. 3

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and 9; ECF No. 29 at p. 3). However, the Court setting a hearing date on the

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motion for preliminary approval of class action settlement undoubtedly prompted

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her ex parte request to file a supplemental brief.

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Since Ms. Portillo’s ex parte request to file a supplemental brief was filed,

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however, Ms. Portillo has engaged in discussion with Plaintiffs and each has stated

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an intention to work with Defendant on evaluating “all issues in this and Portillo

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actions.” (ECF No. 48-1 at ¶ 3; see also ECF No. 48, Treglio Decl. at ¶¶ 8 and 11.)

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The Court has also continued the hearing on the preliminary approval of class

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action settlement to September 15, 2014. Therefore, there is no pending potential

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for irreparable injury to Ms. Portillo. Given the foregoing, the Court DENIES Ms.

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Portillo’s ex parte request to file a supplemental brief. If Ms. Portillo wishes to

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request a stay of this matter and disqualification of counsel, she must file a noticed

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motion and give the parties an opportunity to respond.

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IT IS SO ORDERED.

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DATED: July 25, 2014

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