Opinion
Case No. 2:11-CV-01433-KJM -CKD
07-26-2012
LAURENCE E. STEVENSON, an individual; on behalf of himself and all others similarly situated current and former employees, Plaintiff, v. DOLLAR TREE STORES, INC., a Virginia corporation; and DOES 1 through 50, Inclusive, Defendants.
MAUREEN E. MCCLAIN CONSTANCE E. NORTON AIMEE E. AXELROD LITTLER MENDELSON, P.C. A Professional Corporation Attorneys for Defendant DOLLAR TREE STORES, INC. DYLAN POLLARD MATT C. BAILEY POLLARD BAILEY MIKE ARIAS ALFREDO TORRIJOS ARIAS, OZZELLO & GIGNAC, LLP Attorneys for Plaintiff LAURENCE E. STEVENSON
STIPULATION TO STRIKE
ATTORNEYS' FEES RELATED TO
LABOR CODE SECTION 227.6 CLAIM; ORDER
COMPLAINT FILED: April 22, 2011
TRIAL DATE: No date set.
MAUREEN E. MCCLAIN, Bar No. 062050
CONSTANCE E. NORTON, Bar No. 146365
AIMÉE E. AXELROD, Bar No. 255589
LITTLER MENDELSON
A Professional Corporation
Attorneys for Defendant
DOLLAR TREE STORES, INC.
DYLAN POLLARD, Bar No. 180306
MATT C. BAILEY, Bar No. 218685
POLLARD BAILEY
MIKE ARIAS, Bar No. 115385
ALFREDO TORRIJOS, Bar No. 222458
ARIAS, OZZELLO & GIGNAC, LLP
Attorneys for Plaintiff
Laurence E. Stevenson
TO THE HONORABLE COURT AND THE CLERK OF THE COURT:
Plaintiff Laurence Stevenson ("Plaintiff") and Defendant Dollar Tree Stores, Inc. ("Defendant"), by and through their respective counsel of record, hereby stipulate and request that the Court enter an Order as follows:
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;
WHEREAS the First Cause of Action in the Complaint purports to seek remedies for Defendant's alleged failure "to provide Plaintiff and members of the proposed class with proper off-duty meal periods or otherwise compensate them for missed meal periods," in violation of, inter alia, Labor Code sections 226.7 and 512 [Complaint ¶¶ 24-28], and in particular, alleges in that "[p]ursuant 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 ... attorneys' fees, and costs of suit." See Complaint ¶ 18;
WHEREAS Defendant's Answer to Plaintiff's Complaint also contains a demand for attorney's fees, which states in relevant part "that judgment be entered in its favor and it be awarded its costs, including attorneys' fees and such further relief as this Court deems just and appropriate." See Answer to Complaint, at 5:13-15 (emphasis added); and,
WHEREAS during the pendency of this Action, on or about April 30, 2012, the California Supreme Court issued an opinion concluding that "neither section 1194 nor section 218.5 authorizes an award of attorney's fees ... on a section 226.7 claim" for breaks. See Kirby v. Immoos Fire Protection, Inc., 53 Cal. 4th 1244, 1248 (2012).
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:
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.
2. 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. Notwithstanding the foregoing, the Parties reserve the right to seek attorneys' fees under other applicable claims or statutes plead in the Complaint, and to oppose such requests. Further, the parties' stipulation does not prevent the Parties from raising and opposing other arguments regarding the impact of Kirby on other claims, defenses and/or remedies sought by the Parties.
4. Both parties reserve their right to re-raise the issues addressed in this Stipulation in the event future legal developments so warrant.
IT IS SO STIPULATED.
Respectfully submitted,
_________________
MAUREEN E. MCCLAIN
CONSTANCE E. NORTON
AIMEE E. AXELROD
LITTLER MENDELSON, P.C.
A Professional Corporation
Attorneys for Defendant
DOLLAR TREE STORES, INC.
Respectfully submitted,
_________________
DYLAN POLLARD
MATT C. BAILEY
POLLARD BAILEY
MIKE ARIAS
ALFREDO TORRIJOS
ARIAS, OZZELLO & GIGNAC, LLP
Attorneys for Plaintiff
LAURENCE E. STEVENSON
THE FILER OF THE DOCUMENT ATTESTS THAT THE CONTENT OF THIS DOCUMENT IS ACCEPTABLE TO ALL PERSONS REQUIRED TO SIGN THIS DOCUMENT.
ORDER
FOR GOOD CAUSE SHOWN, the 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. ("Defendant") is hereby GRANTED 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:
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.
2. 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. Notwithstanding the foregoing, the Parties reserve the right to seek attorneys' fees under other applicable claims or statutes plead in the Complaint, and to oppose such requests. Further, the parties' stipulation does not prevent the Parties from raising and opposing other arguments regarding the impact of Kirby on other claims, defenses and/or remedies sought by the Parties.
4. Both parties reserve their right to re-raise the issues addressed in this Stipulation in the event future legal developments so warrant.
PURSUANT TO STIPULATION, IT IS SO ORDERED.
__________________________________
UNITED STATES DISTRICT JUDGE