Case Name: Xuehua Wang, et al. v. Art of Reflexology Milpitas, LLC, et al.
Case No.: 2015-1-CV-283659

This is a class action alleging that defendants misclassified employees as independent contractors and committed other wage and hour violations. Before the Court is plaintiffs’ motion for terminating or, alternatively, issue or evidence sanctions, as well as monetary sanctions. Plaintiffs contend that defendants violated the Court’s July 16th, 2018 order granting their motion to compel the production of documents in response to deposition subpoenas. Defendants oppose plaintiffs’ motion and seek monetary sanctions against plaintiffs.

In an order filed on May 16, 2019, the Court continued the hearing on this matter to allow plaintiffs to complete the depositions of individual defendants Chiu Hung Lam and Wah Yiu Lee and to obtain declarations by potential class members who plaintiffs contend were improperly contacted by defendants or their agents. The Court ordered the parties to file supplemental briefs “addressing the merits of plaintiffs’ allegations that defendants have improperly contacted class members during this litigation,” and stated that it may issue an order to show cause addressed to this issue if warranted in light of further discovery. The order also barred defendants and their counsel from initiating communications with potential class members regarding this action or expressing any views to them about opt-outs.

The Court has reviewed the supplemental briefs and supporting evidence filed by the parties in response to its May 16th order, as well as their unauthorized supplemental reply briefs. The parties report that since the Court issued its order, the deposition of defendant Lee was resumed but was only partially completed, and the deposition of defendant Lam has not been resumed. Plaintiffs have filed additional employee declarations to support their claims of improper communications with the class, and contend that defendants not only improperly solicited opt-outs, but forged or caused someone else to forge employees’ signatures on opt-out forms. The Court will evaluate this evidence and determine what further action it may necessitate in due course. However, as reflected by its May 16th order, it wishes to proceed on a more complete factual record.

The hearing on this matter will therefore be continued—briefly—for a second time, so that Lam and Lee’s depositions may be completed. The date for the continued hearing will be set during the case management conference in this action on August 2. The Court has in mind a date in mid-September; the parties shall meet and confer prior to the case management conference and shall be prepared to commit to completing the depositions on specific dates in August or early September so that the Court can review the transcripts prior to the hearing. Meanwhile, plaintiffs shall file any additional employee declarations that they may obtain in support of their claims of improper communications with the class and forging of employees’ signatures on opt-out forms. No further briefing is authorized.

At the case management conference, the parties shall also address the impact of defendant Art of Reflexology Newark, LLC’s recent bankruptcy filing.

Defendants and their counsel remain barred, directly or through any employee or other agent or surrogate, from (1) initiating any communications with potential class members regarding this action and (2) expressing any view to potential class members regarding whether they should remain in the action or opt out of it.

The Court will prepare the order.