Case Name:   Tian, et al. vs. Ma Laboratories, Inc., et al.

Case No.:       1-11-CV-195373

 

1. Motion for Class Certification

 

Parties to appear.

 

1. Defendants’ Motion to Disqualify Class Counsel

 

Defendants Ma Laboratories, Inc. (“Ma Labs”), Abraham C. Ma and Christine Rao (“Defendants”) move to disqualify Sanford Heisler, LLP (“Sanford Heisler”), Law Offices of Thomas Marc Litton (“Litton”), and Chapin Fitzgerald, LLP (“Chapman Fitzgerald”) (collectively “Class Counsel”) from acting as class counsel.[1]

 

Defendants contend that in support of Plaintiffs’ motion for class certification, Class Counsel submitted 31 declarations that were translated by Plaintiffs’ attorney Xinying Valerian and Sanford Heisler paralegals Sherri Bai and Evelyn Ramirez in a manner that was false and misleading in order to change the testimony to support Plaintiffs’ legal theories.  Defendants further argue that Litton cannot serve as Plaintiffs’ counsel because he previously represented former Ma Labs employee Bing Shen in his individual lawsuit against Ma Labs in 2010, and in that lawsuit, Litton obtained a declaration from Yi Wu – a plaintiff in this action – in which she admitted that Ma Labs had a policy and practice regarding breaks in February of 2010, contradicting Plaintiffs’ claims in this action that rest break schedules were implemented in July 2013.  Defendants contend that given the exculpatory content of the Yi Wu declaration, Litton has a conflict of interest to impeach the sworn statement of his own client.  Defendants submit that Class Counsel has previously been disqualified in the federal action Lou v. Ma Laboratories for conflicts of interest, and Sanford Heisler’s public Web site continues to make material misrepresentations that David Sanford is “lead trial counsel” in a “class action”, when in fact Mr. Sanford is not admitted to practice law in California and the instant matter is merely a putative class action.  Defendants also submit that Class Counsel cited a case as a “certified class action” to demonstrate their credentials even though it had been decertified weeks earlier.

 

In support of the motion for disqualification, Defendants request judicial notice of (1) copy of Sanford Heisler’s Web site (Exh. A); and (2) Letter from Wallace E. Shipp, Jr., Bar Counsel for District of Columbia Office of Bar Counsel, dated October 30, 2009 (Exh. B).  The request is DENIED because neither document is properly authenticated, and the letter from the Office of Bar Counsel to Mr. Sanford is irrelevant to this case.  Defendants also request (with their reply papers) judicial notice of records filed by Sanford Heisler in Stiller v. Costco and in the Lou case.  The request is DENIED for lack of relevance.

 

“ ‘The authority to disqualify an attorney stems from the trial court’s inherent power “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.’  [Citations.]  . . . . “The trial court’s exercise of this discretion is limited by the applicable legal principles and is subject to reversal when there is no reasonable basis for the action.”  [Citations.]’  [Citations.]”  (Cal Pak Delivery, Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th 1, 8-9.)  “[D]isqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility  [Citation.]  The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.  The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.’ ”  (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1355.)

 

However, “ ‘[s]ince the purpose of a disqualification order must be prophylactic, not punitive, the significant question is whether there exists a genuine likelihood that the status or misconduct of the attorney in question will affect the outcome of the proceedings before the court …. [Citation.]  Disqualification is inappropriate, however, simply to punish a dereliction that will likely have no substantial continuing effect on future judicial proceedings.  [Citation.]’  [Citations.]”  (Cal Pak, supra, 52 Cal.App.4th at p. 11.)  “ ‘In the class action context, the Court has an obligation to closely scrutinize the qualifications of counsel to assure that all interests, including those of as yet unnamed plaintiffs are adequately represented.  [Citation.]  This is because in certifying a class action, the Court confers on absent persons the status of litigants and “creates an attorney-client relationship between those persons and a lawyer or group of lawyers.”  [Citations.]  Precisely because of the responsibility to absent class members, counsel’s qualifications in the class action context are subject to “heightened standard.”   [Citations.]’ ”  (Id. at p. 12.)

 

Here, Class Counsel’s ethical obligations regarding truthful representations to the Court are set forth in the California Rules of Court and California Business & Professions Code.  Rule 5-200(A) provides:  “In presenting a matter to a tribunal, a member…[s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.”  California Business & Professions Code section 6068 subdivision (d) provides:  “It is the duty of an attorney…[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

 

In support of the disqualification motion, Defendants submit an Appendix of Material Alterations to Declarations in Support of Class Certification Motion[2] that challenges 40 translated portions of the Mandarin declarations and 3 translated portions of the Spanish declarations.  The Appendix compares Sanford Heisler’s translation with the translation of a court-certified translator hired by Defendants (Mary Ma), and sets forth why the alterations are materially misleading.

 

The Rules of Court do not expressly require translations of foreign exhibits to be made by a certified court interpreter, only that certifications of the translations be made under oath by a “qualified interpreter.”  (See Cal. Rules of Court, rule 3.1110(g).)  Here, translations were done by an attorney and paralegals of Sanford Heisler, but Plaintiffs do not provide much detail of their qualifications other than indicating that they were “Chinese-speaking” or “Spanish-speaking”.[3]  Plaintiffs argue that Defendants’ motion exaggerates minor translation errors or relies on immaterial differences in translation that are subject to reasonable dispute.  Plaintiffs submit that any translation errors were inadvertent and not an attempt to mislead the Court.

 

The purported translation errors identified in the moving papers range from insignificant differences between Class Counsel’s translations and the court-certified translation to some clearer errors or omissions.  However, not all of the errors are material.  For instance, Defendants make much of the fact that Plaintiffs translated the statement “I regularly worked over twelve hours a day” (court-certified translation) to “I regularly worked over ten hours a day” (Sanford Heisler’s translation)[4] arguing that the failure to correctly translate a number cannot be a typographical error.  However, to the extent Plaintiffs’ claim for missed second meal periods is brought on behalf of all employees who worked shifts of more than 10 hours, this claim would include employees like Sheng Yang who claimed to work over 12 hours.  Defendants also point to Plaintiffs’ translation of the statement “When my manager requested me to perform work during my lunch” (court-certified translation) to “When my manager told me to perform work during my lunch” (Sanford Heisler’s translation),[5] arguing that a request is different from being “told” (e.g., commanded, ordered, directed).  However, taken in context, this distinction is not material because either way, the declarant attests to feeling unable to refuse “the demand.”[6]

 

The Court finds that the bulk of the translation differences set forth in Defendant’s Appendix are trivial and do not suggest an intent by Class Counsel to mislead the Court.  At most, one could argue that several of the errors in translation demonstrate the lack of a “qualified interpreter” for purposes of California Rules of Court, rule 3.1110(g), but this is not a basis for disqualifying Class Counsel.  Under Cal Pak, disqualification of counsel based on the translation errors identified in Defendant’s papers would be disproportionately punitive.

 

As for Litton, Defendants submit the declaration of legal ethics expert John Steele, who states that under California Rule of Professional Conduct 5-210, the “attorney-witness rule” is broadly applied in California, and should apply to disqualify a lawyer under hypothetical 7(b).  Rule 5-210 provides:  “A member shall not act as an advocate before a jury which will hear testimony from the member unless: [¶] (A) The testimony relates to an uncontested matter; or [¶] (B) The testimony relates to the nature and value of legal services rendered in the case; or [¶] (C) The member has the informed, written consent of the client. If the member represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the member is employed and shall be consistent with principles of recusal.”  Mr. Steele notes that while the rule only applies to jury trials,[7] under Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, the rule may be more broadly applied.[8]  Mr. Steele opines that if the Court were to view the putative class members as persons who cannot consent to Litton acting as both witness and advocate before the jury, “the Court might in its discretion disqualify the particular lawyer from undertaking those joint roles.”[9]

 

Mr. Steele’s opinion does not compel disqualification of Litton.  Notably, Mr. Steele’s opinion that the Court “might” disqualify Litton is quite tepid.  Moreover, it is based on a hypothetical that assumes “the attorney or his staff drafted the declaration for Declarant” in the first lawsuit.[10]  Here, Defendants submit no evidence that Litton drafted the Yi Wu declaration.  More importantly, there is no genuine likelihood that Litton’s prior conduct will affect the outcome of the proceedings here.  As Plaintiffs point out, there is no basis to assume that Litton has personal knowledge of the facts stated in the 2010 Yi Wu declaration such that he could be called upon to corroborate the truthfulness of her factual statements.[11]  Yi Wu, not Litton, would be the material witness as to any exculpatory statements in her 2010 declaration.

 

Regarding Class Counsel’s disqualification in Lou, this was based on a conflict of counsel representing two separate classes against the same Defendants.  The Lou case settled, so there is no further conflict, and the prior disqualification was not about false statements to the federal court, so it is irrelevant.  Thus, there would be nothing prophylactic about disqualifying Class Counsel based on the conflict recognized in Lou.

 

For these reasons, the motion for disqualification is DENIED.

 

1. Defendants’ Motion to Strike Declarations Filed in Support of Plaintiffs’ Motion for Class Certification

 

Defendants move to strike 30 of the translated declarations (24 translated from Mandarin, 6 from Spanish) on the grounds that (1) they are tainted by the false and misleading translations of Class Counsel; (2) four declarations fail to comply with California Code of Civil Procedure section 2015.5’s requirement that declarations be made under penalty of perjury under the laws of the State of California; (3) the 24 Mandarin declarations fail to state the declarants’ personal knowledge of facts stated therein; (4) Plaintiffs did not present voluntary consent forms to the declarants; (5) the signature pages are hanging; (6) one declaration (Benito Gonzalez) is not signed; (7) Class Counsel refused to make three declarants (Sheng Yang, Declarant 52, and Yi Guang Xu) available for deposition, and therefore, their declarations are hearsay; and (8) 25 declarations (Exhs. 31-55) were not timely filed and served.

 

As discussed above with regard to the motion for disqualification, the mostly minor and immaterial translation errors identified by Defendants in their papers do not justify striking the declarations in their entirety.  Because Plaintiffs concede some errors were made, a more reasonable remedy would be to credit Defendant’s certified translations where there is a showing of a notable error, omission or mistranslation.  The Court can make use of Defendant’s Appendix in this manner during its review of Plaintiffs’ certification evidence.

 

As Defendants point out, three of Plaintiffs’ declarations (Bao Jie Zhang [Pltfs’ Exh. 28], Sheng Yang [Pltfs’ Exh. 43], and Benito Gonzalez [Pltfs’ Exh. 49]) fail to state they were certified under penalty of perjury “under the laws of the State of California” and also fail to indicate the locations where the declarations were executed.  The declaration of Guang Tian (Pltfs’ Exh. 31) states that it was executed in Virginia, but does not include the phrase “under the laws of the State of California” in the certification under penalty of perjury.

 

[California Code of Civil Procedure section 2015.5] requires some acknowledgement on the face of the declaration that perjured statements might trigger prosecution under California law.  The Legislature has determined that such knowledge can be inferred from the “place of execution” where the document shows it was signed here.  [Citation.]  All other declarations, including those signed in other states, must invoke “the laws of the State of California.”  [Citation.]

 

(Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606.)  Accordingly, the motion to strike the declarations of Bao Jie Zhang, Sheng Yang, and Guang Tian is GRANTED.[12]  As for Benito Gonzalez, Plaintiffs have submitted an amended declaration that indicates it was executed in “San Jose.”[13]  Under section 2015.5 and Kulshrestha, Mr. Gonzalez’s knowledge that his statements could trigger prosecution for perjury under California law can be inferred from the place of execution.

 

Defendants also challenge the original Benito Gonzalez declaration on the grounds that it was not signed.  A written declaration made under penalty of perjury may be used as evidence if, among other requirements, it “is subscribed by” by the declarant.  (See Cal. Code Civ. Proc., § 2015.5.)  “‘Subscribe’ as used in section 2015.5 means to sign with one’s own hand.  [Citation.]”  (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027.)  Plaintiffs have submitted a hand signed declaration of Benito Gonzalez with their opposition papers.[14]

 

Defendants argue that the 24 Mandarin declarations should be stricken because the preamble fails to certify that the declarations are based on “facts” within the declarants’ personal knowledge, stating instead that they are based “on the contents” of the declarations.  This argument is baseless.  There is no statutorily required language regarding a declarants’ statement of personal knowledge.  Instead, a declarant’s personal knowledge is established by the facts contained in the declaration, not by the conclusory wording of a statement of personal knowledge.  (See, e.g., Osmond v. Ewap (1984) 153 Cal.App.3d 842, 851 [declarations were sufficient to establish that they were made on personal knowledge even though they contained no statement that “the facts set forth are personally known to the declarant and . . . he has firsthand knowledge of the same”].)

 

The lack of voluntary consent forms is no basis to strike the declarations.  Plaintiffs and Class Counsel are not in an inherently coercive relationship with the putative class members justifying the type of informed consent guarantees that may be necessary in the employment context.  (See Quezada v. Schneider Logistics Transloading & Distribution (C.D. Cal. 2013) 2013 U.S. Dist. LEXIS 47639, *10-11 [discussing “heightened potential for coercion” in employer-employee relationships].)

 

The hanging nature of the signature pages does not constitute a valid basis to strike the declarations.  It is pure speculation to suggest that the signatures were not validly obtained.

 

As to Plaintiff’s failure to make three declarants available for deposition, Defendant claims there is a hearsay issue with these declarations.  Of course, declarations are, by their nature, hearsay and thus are generally inadmissible at trial.  (See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354.)  However, declarations are expressly permitted as evidence on class certification motions and law and motion in general.  (See Cal. Rules of Court, rules 3.764(c)(3), 3.1306(a).)  Defendants acknowledge that Sheng Yang was unavailable for deposition, but they argue that Declarant 52 and Yi Guang Xu should have been made available for deposition.  In opposition, Plaintiffs submit that they attempted to accommodate Defendants’ requests for depositions of putative class members and managed to confirm seven such depositions.  The Court finds the record does not support obstruction on the part of Plaintiffs that would justify striking these three declarations.

 

Finally, as to the late-filed Exhibits 31-55, Plaintiffs demonstrate that this was due to an uploading error, and Defendants fail to demonstrate prejudice from the untimely service of the exhibits.

 

For all of these reasons, the motion to strike is GRANTED IN PART as to the declarations of Bao Jie Zhang, Sheng Yang, and Guang Tian but is otherwise DENIED.  Regarding any significant translation errors, the Court will make use of Defendant’s Appendix of Material Alterations to Declarations in Support of Class Certification Motion during its review of Plaintiffs’ certification evidence.

 

1. Plaintiffs’ Motion to Strike Defendants’ Exhibit 100

 

Plaintiffs move to strike Defendants’ Exhibit 100 submitted in opposition to the motion for class certification.  The exhibit is entitled “Defendants’ Response to Plaintiff’s Summary of Evidence.”  Plaintiffs contend the exhibit violates California Rules of Court, rule 3.764(c)(2)’s page limit for class certification opposition briefs because it includes an additional 51 pages of legal argument improperly filed as an evidentiary exhibit.

 

Plaintiffs also move to strike Defendants’ “Objections and Summaries of Evidence in Opposition” on the grounds that the objections do not comport with California Rules of Court, rule 3.1354’s formats for written evidentiary objections and attempt to adjudicate the merits of Plaintiffs’ claims, which is not appropriate in a motion for class certification.

 

Defendants contend that their Exhibit 100 is in direct response to Plaintiffs’ Exhibit 1, entitled “Summary of Testimony.”  Defendants argue their objections do not need to comply with rule 3.1354 because this is not a summary judgment motion.

 

Both parties have submitted evidentiary summaries that are not expressly permitted by the Rules of Court on a motion for class certification.  (See Cal. Rules of Court, rule 3.764(c)(3)-(4) [documents in support of/opposition to class certification].)  Both parties’ summaries are like briefs in that they present each parties’ main arguments with citations to evidence.  Nevertheless, given the large amount of proper evidence submitted in connection with the motion for class certification, the summaries of evidence are potentially useful for the Court.  The Court has discretion to permit these excessive filings.  (See Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 514.)  The motion to strike Defendants’ Exhibit 100 is DENIED.

 

As for Defendants’ objections, the Rules of Court relating to motions for summary judgment technically do not apply to a motion for class certification, and rule 3.764 does not discuss evidentiary objections, let alone prescribe a format.  The motion to strike Defendants’ objections is DENIED.

 

1. Plaintiffs’ Motion to Strike Class Member Declarations

 

Plaintiffs move to strike 33 putative class member declarations submitted by Defendants in opposition to Plaintiffs’ motion for class certification.[15]  Plaintiffs argue that the declarations are the product of coercive interviews that were conducted before the July 2, 2014 court-ordered corrective notice was mailed out to putative class members.  Plaintiffs further argue that Defendants targeted the most vulnerable employees such the elderly, those with limited English, and the mentally and/or emotionally infirm.  Plaintiffs further argue the declarations are replete with inaccurate and misleading statements, and there were flaws in the translation process of Chinese-language declarations.

 

In opposition, Defendants first argue the moving papers were not timely filed and should be denied for that reason.  Defendants further argue that motion should be denied because there is no dispute that they followed the court-approved process to obtain declarations from putative class members, the Discovery Referee issued an unchallenged finding that Defendants complied with the interview procedure, there is no evidentiary basis to support Plaintiffs’ claim that Defendants targeted vulnerable employees, and Plaintiffs’ challenges to the credibility of the declarations and the manner in which they were translated do not demonstrate deception or coercion in the interviewing process.  Regarding the corrective notice, Defendants submit that the Discovery Referee invited Plaintiffs to bring a motion demonstrating prejudice from the failure to provide the corrective notice prior to any interviews, and Plaintiffs failed to do so.  Defendants contend that the Court’s order regarding Defendants’ communications with putative class members did not require the sending of the corrective notice before communications could occur.

 

Based on the August 22, 2014 hearing date, Plaintiffs’ moving papers were due by July 31, 2014 (see Cal. Code Civ. Proc., § 1005, subd. (b) [16 court days before hearing]), but they were not filed until August 1, 2014.  The Court may, in its discretion, refuse to consider late-filed papers (see Cal. Rules of Court, rule 3.1300(d)), but because Defendants claim no prejudice from the one-day-late filing, the Court will consider the merits of the motion.

 

On May 27, 2014, the Court issued a protective order regulating Defendants’ communications with putative class members based on evidence submitted by Plaintiffs that Defendants failed to inform Ma Labs employees of the adversarial and evidence-gathering purpose of the interviews from which declarations were obtained in 2012.  On July 2, 2014, the Court issued its Order Re: Corrective Notice indicating that on June 4, 2014, Plaintiffs filed the corrective notice with the Court; on June 4 and 6, 2014, the parties met and conferred regarding the language of the corrective notice; and on June 6, 2014, the parties received guidance from the Court regarding the language of the corrective notice.[16]  The July 2, 2014 Order required the corrective notice, with translations in Chinese and Spanish, to be mailed to the putative class within 5 business days, either by third party administrator or Defendants.[17]

 

Plaintiffs do not contend that in conducting the interviews leading to the challenged declarations, Defendants failed to inform putative class members of the adversarial nature of the interviews or violated the terms of the May 27, 2014 or July 2, 2014 orders.[18]  Plaintiffs’ counsel acknowledges that the challenged class member declarations were accompanied by signed “Voluntary Interview Consent Forms” that contained various material disclosures:

 

• “The Plaintiffs filed this lawsuit as a class action on behalf of themselves and all other non-exempt employees at the Company from March 2007 and forward.  As a result, if the lawsuit is successful, you may be able to collect money.  I want you to know this so that you can make an informed decision about whether you want to talk to me or not.”
• “Information you give me may be shared with the Company and used in the lawsuit in a way that could harm your legal interests in the lawsuit.”
• “This interview is entirely voluntary.  You can choose whether to participate.”
• “I might ask you to sign a statement at then [sic] end of the interview and the Company might use it in the lawsuit.”[19]

 

The challenged declarations were also accompanied by copies of the “Invitation to Interview” form signed by the Discovery Referee with an area for the declarant to indicate their consent or refusal to attend an interview.[20]  The Invitation to Interview document provides similar disclosures as the Voluntary Interview Consent Form.

 

In opposition to the motion, Defendants set forth details on how the interviews proceeded.  According to Defendants, at each interview, the employees met with an attorney for Defendants and a court-certified translator.[21]  No Ma Labs representatives were included in the interviews.[22]  The attorney first obtained verbal confirmation that the employee had received, read and understood the Invitation to Interview form and the Voluntary Interview Consent documents.[23]  The attorney accepted the signed Invitation to Interview form with signature at least 48 hours prior to the time of the interview, and the Voluntary Interview Consent form after the employee verbally consented to the interview.[24]  All witnesses who were interviewed said they had received the corrective notice, and some brought it with them.[25]  At the end of the interview, the employee was asked if they wanted to provide a declaration, and if they agreed to provide one, they were given the option to either sign a declaration in English with the aid of the translator, or sign an additional consent form and agree to come back to review a translated declaration.[26]  Following the interviews, the attorneys would prepare declarations in English based on the information gathered during the interviews and forward the declarations to the certified translator.[27]

 

The timing of some interviews prior to the mailing of the corrective notice seems to have been the result of confusion or mistake regarding the need for approval of the language of the corrective notice from the Discovery Referee, as discussed in the Referee’s Recommended Order No. 11.[28]  The Discovery Referee found that Defendants complied with the procedures discussed in a June 19, 2014 telephone conference in which the Invitation to Interview and Voluntary Interview Consent forms (but not the corrective notice) were discussed.[29]  The Discovery Referee noted that a number of interviews had been conducted without the interviewees having received the corrective notice, but also pointed out that “the language of the Corrective Notice is, to a substantial degree, repeated in the Invitation to Interview and in the Voluntary Interview Consent Form, both of which have gone to those who have been interviewed.”[30]  The Referee held that because there was “no practical way to unwind that process[,]” the best course of action was to stay presently pending interviews until the corrective notice was circulated.  The Referee also invited Plaintiffs’ counsel to bring a noticed motion before the Referee to seek redress for “any legitimate claim to having been prejudiced by the failure to provide the Corrective Notice to putative class members prior to the interviews[.]”[31]  Plaintiffs did not challenge Recommended Order No. 11 or bring a motion before the Referee demonstrating prejudice from the timing of the interviews in relation to the corrective notice’s mailing.

 

Plaintiffs’ evidence in support of this motion consists of the declarations of Ma Labs current and former employees Chi Zhang, Zhong Gui Li, Steven Lee, Yi Gang Xu, and Huamei Huang.  Plaintiffs also submit the declaration of Richard Wei Peng, a certified court interpreter, who points out purported inaccuracies in Defendants’ Exhibits 223 and 207, and a portion of 264.  This evidence does not adequately support the motion to strike.  The declarations of Steven Lee and Huamei Huang challenge Defendants’ evidence on Ma Labs’ meal and rest break policies, but this evidentiary dispute is no basis to strike Defendants’ evidence.  The translation differences cited in Mr. Peng’s declaration are mostly trivial and immaterial.  Yi Gang Xu’s declaration pertains to the 2012 interview with Ma Labs’ attorneys and purported inaccuracies in the resulting declaration; it does not pertain to any of the declarations Plaintiffs seek to have stricken in this motion.  Chi Zhang and Zhong Gui Li provide only generalized statements of what they “believe” regarding the vulnerability of employees interviewed by Ma Labs in 2014, without providing any meaningful details or identifying any such individuals.[32]

 

For all of these reasons, the Court finds that Plaintiffs fail to demonstrate that the challenged declarations were the product of coercive interviews.  The motion to strike is DENIED.

 

 

VI .     Motion for Class Certification:

 

Parties are ordered to appear.

 

[1] Defendants also move to disqualify Yi Wu, Yuhong Chang, Chao Hui “Roger” Liu, Christopher Cavaliere, Ming Fang Tie, and Baojie Zhang as class representatives, arguing that their claims not typical of the class because their individual jobs and departments had different ways of implementing meal and rest periods over different periods, and Christopher Cavaliere and Roger Liu executed arbitration agreements precluding them from bringing a class action lawsuit.  Defendants argue the class representatives are not adequate because each has given sworn testimony that is materially contradictory.  To the extent issues raised in this disqualification motion overlap with the class certification requirement of adequacy of representation by the class representatives and Class Counsel, they will be dealt with in connection with the motion for class certification.

[2] Exhibit A to Declaration of Christine Long ISO Mot. to Disq.

[3] See Decl. Xinying Valerian ISO Pltfs’ Opp. to Mot. to Disq. ¶¶ 7-8.  Ms. Valerian notes, however, that until the class certification motion, Defendants had not objected to her prior translated declarations in this action or her acting as an interpreter at depositions.  (Decl. Valerian ¶ 9.)

[4] Decl. Sheng Yang ¶ 20, Pltfs’ Exh. 43.

[5] Decl. Yu Hong Chang ¶ 15, Pltfs’ Exh. 25.

[6] Even the court-certified translation uses the word “demand” in the second phrase of the sentence to describe the manager’s “request.”

[7] Decl. John Steele ¶ 17.

[8] Decl. Steele ¶¶ 18-19.

[9] ¶ 19.

[10] Decl. Steele ¶ 7.b.

[11] See Decl. Thomas Marc Litton ISO Pltfs’ Opp. to Mot. to Disq. ¶ 2:  “I have never been to Ma Labs.  I have never witnessed any events at Ma Labs.”

[12] On August 21, 2014, Plaintiffs filed a Request for Leave to File newly-obtained declarations of Bao Jie Zhang and Guang Tian.  However, Plaintiffs only provided Chinese-language versions without English translations.  Thus, the Request for Leave is DENIED.

[13] See Exh. C to Decl. X. Valerian ISO Pltfs’ Opp. to Mot. to Strike.

[14] See Exh. C to Decl. X. Valerian ISO Pltfs’ Opp. to Mot. to Strike.

[15] The declarants are Ling Li Chan (Exh. 204); Yong Song Chen (Exh. 206); Yue Hua Chen (Exh. 207); Jacky Du (Exh. 213); Jie He (Exh. 215); Jennifer HM Hu (Exh. 217); Canmil Mei Ling Leung (Exh. 220); Fei-Long (Andy) Li (Exh. 221); Wei Raymond Li (Exh. 222); Hui Jian Lin (Exh. 223); Wei Lin (Exh. 225); Jia Wei Liu (Exh. 226); Xiang Yang Mao (Exh. 229); Xiao Xiao Mi (Exh. 231); Chong Ghuang Pan (Exh. 234); Tony Shih (Exh. 238); Quiong Shu (Exh. 239); Ching-Heng Sun (Exh. 242); Han Ping Sun (Exh. 243); Yu Shu (Andy) Tay (Exh. 244); Johnson Wang (Exh. 245); William Wang (Exh. 247A); William Wang (Exh. 247B); Derek Wong (Exh. 248); Sheung Xiu Wong (Exh. 249); Chun Feng Wu (Exh. 250); Jian Lin Yan (Exh. 252); Ling Tong Yu (Exh. 255); Zhi Quang Zhang (Exh. 257); Wen Zhang (Exh. 258); Yi-Hao Ryan Lee (Exh. 219); Leopold Marquez (Exh. 230); and Francisco Javier Molino Soto (Exh. 241).

[16] See July 2, 2014 Order Re: Corrective Notice, docket no. 243.

[17] Id. at p. 2.

[18] Neither the May 27, 2014 Order Re: Motion for Protective Order nor the July 2, 2014 Order Re: Corrective Notice expressly required the sending of the corrective notice before Ma Labs could have communications with its employees.

[19] See Voluntary Interview Consent Form, attached to Decl. Yue Hua Chen, Exh. A to Decl. Xinying Valerian ISO Mot. to Strike Class Member Decls.

[20] See Invitation to Interview, attached to Decl. Chen, Valerian Exh. A.

[21] Decl. Jennifer Y. Leung ISO Defs’ Opp. to Pltfs’ Mot. to Strike Class Member Decls. ¶ 6.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Id. ¶ 8.

[27] Id. ¶ 9.

[28] See Recommended Order No. 11 at pp. 1-2, docket no. 248.

[29] Ibid.

[30] Id. at p. 3.

[31] Ibid.

[32] Defendants have submitted copious objections to Plaintiffs’ declarations.  (See Defs’ Appx. of Evid. ISO Opp. to Mot. to Strike, Exhs. 201-205.)  The Court need not rule on these objections because Plaintiffs’ evidence, even if fully considered, would not adequately support striking Defendants’ declarations.