SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

LINGYU LU, an individual and on behalf of herself and all others similarly situated,

Plaintiff,

vs.

SURGICAL CARE AFFILIATES, LLC, a Delaware limited liability company; and DOES 1 through 100, inclusive,

Defendants.
Case No. 2016-1-CV-292982

TENTATIVE RULING RE: MOTION TO DISMISS CLASS ACTION

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on March 1, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class action arising out of various alleged Labor Code violations. Plaintiff Lingyu Lu (“Plaintiff”) worked as a charge nurse for defendant Surgical Care Affiliates, LLC (“Defendant”) from April 6, 2015 through October 12, 2015. (Complaint, ¶ 16.) Plaintiff alleges that throughout her employment Defendant engaged in the following violations of the laws of the State of California: (1) the failure to pay minimum wage and overtime to Plaintiff; (2) the failure to provide uninterrupted meal and rest periods to Plaintiff; (3) the failure to maintain and provide Plaintiff with timely and accurate wage and hour statements; (4) the wrongful withholding of wages and compensation due to Plaintiff; (5) unfair competition; and (6) misclassification of Plaintiff as an exempt employee. (Complaint, ¶ 20.) Plaintiff also alleges Defendant frequently required her to work more than eight hours per day and more than 40 hours per week without proper compensation. (Complaint, ¶ 21.)

The Complaint, filed on March 21, 2016, sets forth the following causes of action: (1) Failure to Pay Overtime Compensation; (2) Failure to Pay Minimum Wages; (3) Failure to Provide Meal Periods; (4) Failure to Provide Rest Periods; (5) Failure to Furnish Wage and Hour Statements; (6) Failure to Pay Wages and Waiting Time Penalty; and (7) Unfair Competition.

The parties have reached a settlement. On March 29, 2018, the parties filed a Joint Stipulation and Proposed Order for Approval of PAGA Settlement. The Court stated in an order dated April 16, 2018, that the settlement of a class action could not be approved by signing a stipulation and the parties must file a motion seeking approval.

On June 1, 2018, the parties filed a Motion for Approval of PAGA Settlement. The Court denied the motion without prejudice for several reasons, including that the motion effectively dismissed the class claims in the action without Court approval and that there was no PAGA cause of action in the Complaint.

On December 19, 2018, Plaintiff filed an ex parte application to dismiss Plaintiff’s class action claims. The Court denied the application because it did not comply with Rule 3.770(a) of the California Rules of Court. Specifically, the application did not state whether consideration was being given for the dismissal or describe any such consideration in detail. The Court stated Plaintiff could file a formal motion seeking dismissal of the class action claims, which perhaps would allow the Court to better understand how the proposed settlement fulfills the fiduciary duties running to the putative class members.

Plaintiff has now filed a Motion to Dismiss Class Action.

II. MOTION TO DISMISS CLASS ACTION

Plaintiff contends her fiduciary duties to the putative class members have been satisfied because there are no other potential class members. She states further that the consideration paid to Plaintiff is reasonable because there are no other putative class members with whom to divide the settlement and also that there is no prejudice to other class members because there are no other class members.

As stated in the Court’s order on the ex parte application, Rule 3.770(a) of the California Rules of Court states:

A dismissal of an entire class action, or of any party or cause of action in a class action, requires court approval. The court may not grant a request to dismiss a class action if the court has entered judgment following final approval of a settlement. Requests for dismissal must be accompanied by a declaration setting forth the facts on which the party relies. The declaration must clearly state whether consideration, direct or indirect, is being given for the dismissal and must describe the consideration in detail.

Plaintiff’s motion again fails to provide any information describing any consideration given for dismissal of the class claims. The accompanying Declaration of Rebecca Gardner (“Gardner Decl.”) only states there are no other class members. The motion is therefore defective and cannot be granted.

Moreover, Plaintiff has not sufficiently established there are no other class members, as asserted in the papers. The Gardner Declaration states there was only one other individual that could have possibly been identified as a class member, but counsel for Plaintiff determined that person did not meet the same qualifications as Plaintiff because the individual did not have a wage and hour claim. (Gardner Decl., ¶ 3.)

It is not apparent how Plaintiff’s counsel reached this conclusion. The putative class is defined as follows:

All persons who are, have been, or will be employed by any Defendant in any California location owned or operated by any of the Defendants in any non-exempt job positions including, but is [sic] not limited to, nurse, attendee, nurse-practitioner, patient intake, and Charge nurse during the Class Period, which commenced four years prior to the filing of this action and through the date of trial, who performed job duties similar to Plaintiff and who suffered the same wage and hour violations, including periods of time during which the statute of limitations was or may have been tolled or suspended.

(Complaint, ¶ 34.)

This class definition includes at least five different job positions over a greater than four-year period. Plaintiff does not explain how Plaintiff is the only individual who falls within this definition. It is possible Plaintiff contends no other individuals suffered “the same wage and hour violations,” but Plaintiff provides no details in this regard. Further, if Plaintiff is the only individual to have suffered wage and hour violations, it is unclear why Plaintiff filed this case as a class action in the first place.
Plaintiff has not met her burden. The motion is DENIED.

The Court will prepare the final order if this tentative ruling is not contested.

NOTICE: The Court does not provide court reporters for proceedings in the complex civil litigation departments. Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court’s website.