opposition-ex-parte-discovery.docx

1017-00004 · Entities. Aurelius Global Media Group · Pleadings/Class Action

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CALDERWOOD & HARKNESS LLP Renata Vasquez (SBN 224578) Devon Archer (SBN 301462) 777 South Flower Street, Suite 4200 Los Angeles, California 90017 Telephone: (213) 555-7200 Facsimile: (213) 555-7201

Email: rvasquez@calderwoodharkness.com

Email: darcher@calderwoodharkness.com

Attorneys for Defendant AURELIUS MEDIA AMERICAS INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES — CENTRAL DISTRICT

TABLE OF AUTHORITIES

Cases

Statutes and Rules

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendant Aurelius Media Americas Inc. ("AMA" or "Defendant") respectfully submits this Opposition to the Ex Parte Application for Order Permitting Expedited discovery (the "Application") filed by Plaintiff Marisol Fuentes ("Plaintiff" or "Plaintiffs") on January 4, 2023. As set forth below, the Application is procedurally deficient, substantively meritless, and should be denied in its entirety.

Plaintiffs, represented by the law firms of Castellano Byrne & Salas LLP (Marco Castellano and Diane Salas) and Veltrano Employment Law Group PC (Sandra Higuera), filed their Application seeking an order from this Court permitting immediate propounding of written discovery — including interrogatories, requests for production of documents, and requests for admission — and further seeking an expedited deposition of AMA's person most knowledgeable ("PMK") regarding timekeeping and payroll practices. Plaintiffs contend that such extraordinary, pre-answer, pre-CMC discovery is necessary to prevent the alleged loss or destruction of evidence relevant to their putative class claims. This contention is baseless.

The Application suffers from three fundamental and independently dispositive defects.

First, Plaintiffs have entirely failed to make the threshold showing required for ex parte relief under the California Rules of Court. Rule 3.1202(c) mandates that an applicant for ex parte relief demonstrate the existence of an immediate danger of irreparable harm, that the moving party will be irreparably harmed absent the relief sought, or that providing notice to the opposing side is impracticable. Plaintiffs have made none of these showings. The wage-and-hour claims at issue relate to historical employment practices allegedly occurring during a class period commencing November 1, 2018. The putative class members have already experienced the alleged harms — if any such harms exist — and there is no continuing or imminent injury that requires emergency judicial intervention. More fundamentally, AMA implemented a comprehensive litigation hold covering all categories of documents and electronically stored information ("ESI") potentially relevant to Plaintiffs' claims on November 2, 2022 — merely one day after the Fuentes Complaint was filed. There is no credible risk of evidence spoliation.

Second, the Application is premature and procedurally improper. It was filed months before the parties have participated in an Initial Case Management Conference, which is currently scheduled for March 10, 2023, before the Honorable Raymond Escobedo in Department 34. AMA has not yet been required to file its Answer or other responsive pleading. The parties have not established a case management schedule, and no discovery plan has been adopted by the Court. Plaintiffs seek to circumvent the orderly case management process by obtaining a one-sided discovery advantage before AMA has even had the opportunity to file its responsive pleading. Moreover, Plaintiffs failed to engage in the meaningful meet-and-confer efforts required by Code of Civil Procedure section 2016.040 before filing the Application. Plaintiffs' counsel sent a single email on January 2, 2023, and filed the Application only two days later — without waiting for, or even acknowledging, AMA's prompt response proposing a meet-and-confer telephone conference.

Third, and relatedly, the regular discovery process — which will commence following the Case Management Conference and the establishment of an appropriate discovery schedule — is more than adequate to address any legitimate discovery needs Plaintiffs may have. AMA does not seek to delay or obstruct discovery. To the contrary, AMA has already begun preparing its document production, including coordinating with its third-party timekeeping vendor, NovaPay Solutions Inc., for the extraction and production of TimeTrack Pro timekeeping data for the relevant class period. AMA is prepared to participate in discovery on a reasonable schedule established by this Court.

For all of these reasons, the Application should be denied.

II. RELEVANT PROCEDURAL BACKGROUND

The relevant procedural history of this action is as follows:

On November 1, 2022, Plaintiff Marisol Fuentes filed a putative class action complaint (the "Fuentes Complaint") in the Superior Court of the State of California, County of Los Angeles, Central District, bearing Case No. 22STCV38214. The Fuentes Complaint was filed on behalf of Ms. Fuentes individually and on behalf of a putative class defined as all non-exempt, hourly employees employed by AMA in the State of California at any time during the period from November 1, 2018 through the date of final judgment. The putative class is estimated to encompass approximately 1,850 individuals.

The Fuentes Complaint asserts causes of action arising from alleged wage-and-hour violations, including but not limited to: (1) failure to provide meal periods in violation of California Labor Code sections 226.7 and 512; (2) failure to authorize and permit rest periods in violation of California Labor Code section 226.7; (3) failure to pay overtime compensation in violation of California Labor Code sections 510 and 1194; (4) failure to pay minimum wages in violation of California Labor Code sections 1194 and 1197; (5) failure to indemnify employees for necessary business expenditures; (6) failure to provide accurate, itemized wage statements; (7) waiting time penalties under California Labor Code sections 201 through 203; (8) unfair business practices in violation of California Business and Professions Code section 17200 et seq. (the "UCL"); and (9) violations of the applicable Industrial Welfare Commission Wage Order, specifically IWC Wage Order 12, governing the motion picture industry.

On November 1, 2022, the same date the Fuentes Complaint was filed, AMA retained the law firm of Calderwood & Harkness LLP to represent it in this matter. The engagement was assigned Calderwood & Harkness Matter No. 1017-00004. The defense team consists of Renata Vasquez, Responsible Partner; Bernard Crawford, Billing Partner; Devon Archer, Lead Associate; and Nadia Petrov, Working Associate.

On November 2, 2022 — just one day after the filing of the Fuentes Complaint — AMA implemented a comprehensive litigation hold. The litigation hold was directed by Gregory Tanaka, AMA's Vice President of Legal and Compliance, and was distributed to all custodians identified as potentially possessing relevant documents and ESI. The hold encompasses all categories of documents and ESI potentially relevant to Plaintiffs' claims, including but not limited to:

• NovaPay Solutions TimeTrack Pro timekeeping data, including electronic punch-in and punch-out records, auto-deduction records, and Missed Meal Attestation records;

• Payroll records maintained by AMA and its payroll service providers;

• Written meal and rest break policies, including all versions in effect during the class period;

• Employee handbooks and training materials, including all versions in effect during the class period;

• Production schedules and call sheets for all California production facilities;

• Internal communications regarding scheduling, meal breaks, rest breaks, overtime practices, and employee classification.

Seven custodians were identified in connection with the litigation hold: Lorraine Okafor (Chief Human Resources Officer), Gregory Tanaka (VP Legal & Compliance), Jonathan Mercer (Senior Vice President of Production Operations), Celine Arroyo (Director of Payroll and Benefits), Dwayne Prescott (Director of Workforce Management), Karen Fong (Regional Production Manager, Southern California), and the direct supervisors of each named plaintiff. Each identified custodian received written notice of the litigation hold, acknowledged receipt in writing, and was instructed to suspend any routine document destruction or data deletion processes applicable to potentially relevant materials.

On November 18, 2022, a related putative class action complaint was filed by plaintiff Patrick Halloran (the "Halloran Complaint") in the same court, bearing Case No. 22STCV39501. The Halloran Complaint asserts substantially similar claims arising from the same alleged course of conduct by AMA.

On November 28, 2022, AMA filed a Notice of Related Case in Case No. 22STCV38214, identifying Case No. 22STCV39501 (the Halloran action) as a related case.

As of the date of this filing, AMA has not yet been required to file its Answer or other responsive pleading. The timeline for filing AMA's responsive pleading is dependent on the completion of service and the resolution of the anticipated consolidation of the Fuentes and Halloran actions. AMA is currently preparing its Answer, a potential Demurrer to the UCL cause of action, and a Stipulation for Consolidation that AMA anticipates filing on or about January 27, 2023.

The Initial Case Management Conference in this action is currently scheduled for March 10, 2023, before the Honorable Raymond Escobedo in Department 34.

On January 4, 2023, Plaintiffs filed the instant Ex Parte Application for Order Permitting Expedited discovery. Plaintiffs seek an order from this Court permitting immediate propounding of written discovery — including interrogatories, requests for production of documents, and requests for admission — and authorizing an expedited deposition of AMA's person most knowledgeable regarding the company's timekeeping systems, payroll practices, and meal and rest break policies. AMA now opposes the Application.

III. LEGAL STANDARD

An ex parte application is an extraordinary procedural mechanism that permits a party to seek relief from the Court on shortened time and, in many circumstances, without the full briefing and hearing process that normally accompanies noticed motions. Because of the extraordinary nature of ex parte relief, the threshold requirements for such applications are stringent and well-established.

California Rules of Court, Rule 3.1202(c) sets forth the standard governing ex parte applications. Under Rule 3.1202(c), an applicant for ex parte relief must make an affirmative factual showing in a declaration that demonstrates one of the following: (1) that there is an immediate danger of irreparable harm to the applicant or to the subject matter of the action; (2) that the applicant will be irreparably harmed absent the relief requested; or (3) that providing notice to the opposing party is impracticable or would render the requested relief ineffective. The rule requires the applicant to set forth with specificity the facts supporting the need for ex parte relief, rather than relying on conclusory assertions or generalized concerns.

The California Court of Appeal has consistently emphasized the narrow scope of ex parte relief. In Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 977, the Court of Appeal explained that ex parte relief constitutes an "extraordinary remedy" that is "available only upon a showing of exigent circumstances." The court stressed that the applicant must demonstrate that the circumstances are truly exceptional and that the normal procedural mechanisms available to the parties — including noticed motions and the regular discovery process — are inadequate to protect the applicant's interests. Absent such a showing, the court has no basis to depart from the ordinary course of litigation.

Similarly, in Emery v. Pacific Employers Insurance Co. (1937) 8 Cal.2d 663, 666, the California Supreme Court held that expedited discovery is "the exception, not the rule," and is appropriate only where the applicant demonstrates "a specific and compelling need that cannot be addressed through the regular discovery process." The Emery court recognized that the orderly administration of justice requires adherence to established procedural timelines, and that permitting parties to bypass those timelines without adequate justification would undermine the integrity of the case management process.

The burden of establishing entitlement to ex parte relief rests squarely on the moving party. It is Plaintiffs' obligation to justify the requested departure from the ordinary course of litigation, and Plaintiffs must do so with specific, competent evidence — not with speculation, conjecture, or generalized assertions of potential harm. As demonstrated below, Plaintiffs have failed to carry this burden.

IV. ARGUMENT

A. Plaintiffs Have Not Demonstrated Irreparable Harm

The threshold requirement for ex parte relief — a showing of immediate danger of irreparable harm — is entirely absent from Plaintiffs' Application. Plaintiffs' claims relate exclusively to historical wage-and-hour practices that allegedly occurred during a class period commencing November 1, 2018. The alleged violations that form the basis of the Fuentes Complaint — including the purported denial of meal and rest break periods, the alleged failure to compensate employees for off-the-clock work, and the alleged improper operation of auto-deduction features in the NovaPay Solutions TimeTrack Pro timekeeping system — are all past events. Whatever injuries the putative class members may have suffered as a result of these alleged practices — and AMA vigorously disputes that any such injuries occurred — have already been suffered. There is no ongoing, continuing harm emanating from the alleged conduct that requires emergency intervention by this Court.

This distinction is critical. Ex parte relief is designed to address situations in which irreparable harm is imminent — that is, situations in which delay will result in concrete, identifiable injury that cannot be remedied through the normal course of litigation. Classic examples include cases involving the threatened destruction of evidence, the imminent dissipation of assets, or the risk that a defendant will flee the jurisdiction. None of those circumstances is present here. Plaintiffs' claims are garden-range wage-and-hour claims seeking monetary damages for alleged past violations. The damages sought, if any are ultimately awarded, are readily calculable from historical timekeeping and payroll records. There is no risk that the passage of a few additional weeks — during which the parties establish a proper case management schedule — will result in any cognizable harm to Plaintiffs or to the putative class.

Plaintiffs attempt to manufacture a showing of irreparable harm by asserting, in vague and conclusory terms, that "evidence may be lost" if expedited discovery is not permitted. This assertion is speculative, unsubstantiated, and flatly contradicted by the facts.

As detailed in Section II above, AMA implemented a comprehensive litigation hold on November 2, 2022 — one day after the Fuentes Complaint was filed and well before Plaintiffs' counsel first raised the issue of expedited discovery. The litigation hold, directed by AMA's Vice President of Legal and Compliance, Gregory Tanaka, covers every category of documents and ESI that Plaintiffs seek through their proposed expedited discovery requests. Specifically, the litigation hold encompasses:

(a) NovaPay Solutions TimeTrack Pro timekeeping data, including electronic punch-in and punch-out records for all non-exempt, hourly employees across all seven of AMA's California production facilities, as well as auto-deduction records and Missed Meal Attestation records generated by the TimeTrack Pro system;

(b) Payroll records maintained by AMA and its payroll service providers, including wage statements, pay stubs, and records of hours worked, overtime hours, and deductions;

(c) Written meal and rest break policies, including all versions of such policies in effect during the putative class period;

(d) Employee handbooks, onboarding materials, and training materials, including all versions in effect during the putative class period;

(e) Production schedules and call sheets for all AMA productions at California facilities during the class period; and

(f) Internal communications — including emails, memoranda, instant messages, and other correspondence — regarding scheduling, meal breaks, rest breaks, overtime practices, and employee classification.

AMA's counsel at Calderwood & Harkness LLP has confirmed the existence and scope of the litigation hold in counsel's meet-and-confer correspondence with Plaintiffs' counsel. Specifically, in a December 15, 2022 letter to Marco Castellano of Castellano Byrne & Salas LLP, Devon Archer, Lead Associate at Calderwood & Harkness LLP, informed Plaintiffs' counsel that AMA had implemented a comprehensive litigation hold covering all categories of documents and ESI potentially relevant to Plaintiffs' claims and identified the categories of materials subject to the hold. Plaintiffs' counsel acknowledged receipt of this correspondence but have not identified any specific deficiency in the scope or implementation of AMA's litigation hold.

Moreover, the primary category of evidence that Plaintiffs seek through their expedited discovery requests — the NovaPay Solutions TimeTrack Pro timekeeping data — is not at risk of loss or destruction. The TimeTrack Pro data is maintained on servers operated and controlled by NovaPay Solutions Inc., a third-party timekeeping and workforce management services provider headquartered at 2200 Powell Street, Suite 600, Emeryville, California 94608. The custodian of AMA's TimeTrack Pro data at NovaPay Solutions is Marcus Yee, Director of Client Data Services. NovaPay Solutions maintains the TimeTrack Pro data in the ordinary course of its business and does not routinely delete or overwrite historical timekeeping records. AMA's agreement with NovaPay Solutions provides for retention of all timekeeping data for a minimum of seven years following the calendar year in which the data was generated. The earliest data potentially relevant to Plaintiffs' claims — data from November 2018 — will not approach the seven-year retention threshold until the end of calendar year 2025 at the earliest. There is no risk whatsoever that this data will be lost or destroyed in the coming weeks or months.

Similarly, AMA's payroll records are maintained in the ordinary course of business and are subject to California's mandatory record-retention requirements. Under applicable California law, employers are required to maintain payroll records for a minimum of three years. AMA's internal records retention policy requires retention of payroll records for a period of seven years, consistent with the company's general records management practices for employment-related documents. Plaintiffs have not identified any payroll records that are at risk of loss or destruction.

In sum, Plaintiffs have failed to identify any specific evidence that is at risk of spoliation, loss, or destruction. Their assertion that "evidence may be lost" is a generalized, unsupported claim that does not satisfy the stringent standard required for ex parte relief. See Datig v. Dove Books, Inc., supra, 73 Cal.App.4th at 977 (ex parte relief requires a showing of "exigent circumstances," not speculative concerns). The Application should be denied on this basis alone.

B. The Regular discovery Process Is More Than Adequate

Even if Plaintiffs had articulated a cognizable concern about evidence preservation — which they have not — the regular discovery process provides a fully adequate mechanism for addressing Plaintiffs' discovery needs. The extraordinary remedy of ex parte-ordered expedited discovery is warranted only when the normal procedural mechanisms are insufficient to protect the moving party's interests. Here, they are more than sufficient.

AMA anticipates filing its Answer to the Fuentes Complaint by mid-February 2023, following resolution of the pending consolidation motion. AMA intends to file a Stipulation for Consolidation of the Fuentes and Halloran actions on or about January 27, 2023. AMA is also preparing a potential Demurrer to the UCL cause of action (the eighth cause of action in the Fuentes Complaint), which AMA believes fails to state facts sufficient to constitute a cause of action under Business and Professions Code section 17200 et seq. Once these threshold pleading issues are resolved, the case will proceed to the Initial Case Management Conference currently scheduled for March 10, 2023, before the Honorable Raymond Escobedo in Department 34.

At the Case Management Conference, this Court will establish a comprehensive discovery schedule tailored to the needs and complexity of this putative class action. AMA has already prepared a draft Case Management Statement proposing the following discovery timeline:

• Written discovery Phase I: discovery to be propounded by March 1, 2023, with responses due by April 15, 2023. This phase would encompass interrogatories, requests for production of documents, and requests for admission directed to the merits of the putative class claims as well as class certification issues.

• Third-Party Subpoenas: AMA anticipates issuing a third-party subpoena to NovaPay Solutions Inc. for the production of TimeTrack Pro timekeeping and payroll records by February 15, 2023. This subpoena would be issued even before the CMC to facilitate the early production of the electronic timekeeping data that is central to Plaintiffs' claims.

• Depositions of Named Plaintiffs: AMA proposes scheduling depositions of the named plaintiffs during the April–May 2023 timeframe.

• Depositions of Defendant's Witnesses: AMA is prepared to make its witnesses, including a PMK on timekeeping and payroll practices, available for deposition during the April–May 2023 timeframe.

This proposed schedule reflects AMA's good-faith commitment to a prompt and efficient discovery process. The schedule would provide Plaintiffs with all of the discovery they seek through the Application — including the NovaPay Solutions timekeeping data and a PMK deposition — within a matter of weeks after the CMC. The Fuentes Complaint has been pending for only approximately two months. Plaintiffs have not articulated any reason why the additional few weeks required to permit the orderly establishment of a discovery schedule through the CMC process would cause them any cognizable harm.

Plaintiffs have not identified any time-sensitive issue that would justify bypassing the normal discovery schedule. There is no pending destruction of evidence, as discussed above. There is no expiring statute of limitations that would be affected by the discovery timeline. There is no threatened dissipation of assets. AMA is a substantial Delaware corporation with ongoing business operations in the State of California. There is no risk that AMA will become unavailable or unable to respond to discovery.

The regular discovery process, operating within the framework established by this Court at the CMC, is plainly adequate to protect Plaintiffs' interests. The Application is an attempt to short-circuit that process without justification and should be denied.

C. Plaintiffs' Application Is Premature and Procedurally Improper

The Application suffers from additional procedural defects that independently warrant denial.

1. Plaintiffs Failed to Engage in Meaningful Meet-and-Confer

Code of Civil Procedure section 2016.040 establishes the meet-and-confer requirement applicable to discovery disputes. Section 2016.040 provides that a "meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion." This requirement is not a mere formality; it reflects the Legislature's strong policy in favor of resolving discovery disputes through informal negotiation before burdening the Court with contested motions.

Plaintiffs' compliance with this requirement was woefully deficient. The factual record regarding the parties' pre-filing communications is as follows:

On January 2, 2023, Marco Castellano of Castellano Byrne & Salas LLP sent a single email to Devon Archer, Lead Associate at Calderwood & Harkness LLP. In this email, Mr. Castellano requested that AMA agree to early discovery, including the immediate propounding of written discovery and an expedited PMK deposition. The email did not identify any specific urgency or exigent circumstance justifying the request.

On January 3, 2023 — the very next business day following receipt of Mr. Castellano's email — Mr. Archer responded on behalf of AMA. Mr. Archer's response indicated AMA's willingness to discuss a reasonable discovery schedule and proposed a meet-and-confer telephone call for January 6, 2023 to discuss the parties' respective positions regarding the timing and scope of discovery.

On January 4, 2023 — only two days after sending the initial email, and only one day after receiving AMA's response — Plaintiffs filed the Ex Parte Application without waiting for, or even acknowledging, AMA's proposal for a meet-and-confer conference.

This sequence of events demonstrates a complete failure to engage in the meaningful meet-and-confer process required by section 2016.040 and the California Rules of Court. Plaintiffs sent a single email, received a prompt and constructive response proposing a telephonic conference, and then immediately proceeded to file an ex parte application — preempting the very meeting that AMA had proposed. This is not a good-faith effort at informal resolution. It is a transparent attempt to create the appearance of compliance with the meet-and-confer requirement while circumventing its substance.

The Court of Appeal has recognized that courts may deny discovery motions where the moving party failed to make adequate meet-and-confer efforts. In Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431, the Court of Appeal held that the meet-and-confer requirement "must be conducted in good faith" and that a party's failure to engage in meaningful efforts to resolve a discovery dispute informally may itself constitute grounds for denial of the motion. Here, Plaintiffs' meet-and-confer efforts consisted of sending a single email and then filing suit before the response could be acted upon. This falls far short of the standard established by Obregon and section 2016.040.

The failure to meet and confer is not merely a technical defect. Had Plaintiffs engaged in a genuine dialogue with AMA's counsel, they would have learned that AMA had already implemented a comprehensive litigation hold, that AMA was preparing to issue a third-party subpoena to NovaPay Solutions for timekeeping data, and that AMA was willing to discuss a reasonable discovery schedule. This information would have addressed, or at least substantially mitigated, whatever concerns prompted the Application. Plaintiffs' decision to bypass this process and proceed directly to ex parte relief was unjustified and prejudicial to AMA.

2. The Application Is Premature in Light of the Case's Procedural Posture

Beyond the meet-and-confer deficiency, the Application is fundamentally premature. This case is in its earliest possible procedural stage. Consider the following:

• AMA has not yet filed its Answer or other responsive pleading. The timeline for AMA's responsive pleading is dependent on the completion of service and the resolution of the anticipated consolidation of the Fuentes and Halloran actions.

• A related action (the Halloran Complaint, Case No. 22STCV39501) has been filed, and consolidation of the two actions is anticipated. A Stipulation for Consolidation is expected to be filed on or about January 27, 2023.

• AMA is preparing a potential Demurrer to the UCL cause of action, which may narrow the scope of the claims at issue and, consequently, the scope of discovery required.

• The parties have not yet appeared at an Initial Case Management Conference. The CMC is currently scheduled for March 10, 2023.

• No case management order has been entered. No discovery schedule has been established. No discovery cut-off date has been set.

In this context, Plaintiffs' Application effectively asks this Court to permit one-sided discovery at a stage when AMA has not even been required to file its responsive pleading. This is precisely the kind of premature, asymmetric discovery that the case management process is designed to prevent. The Case Management Conference exists to allow the Court to assess the scope and complexity of the case, hear from both sides regarding discovery needs and scheduling, and establish a structured, balanced framework for the conduct of discovery. Plaintiffs seek to leapfrog this entire process and obtain a discovery advantage before the case management framework has been established.

This approach is contrary to the interests of orderly litigation management and should not be countenanced. The CMC is only two months away. The claims at issue involve historical practices spanning a four-year class period. A two-month delay in the commencement of discovery — during which AMA will file its responsive pleading, the parties will brief and resolve the consolidation issue, and the Court will establish a case management schedule — is manifestly reasonable and will not prejudice Plaintiffs in any way.

D. AMA Is Prepared to Engage in discovery on a Reasonable Schedule

AMA wishes to make clear to this Court that it does not seek to delay or obstruct the discovery process. AMA recognizes that this putative class action involves significant factual issues that will require the exchange of substantial volumes of documents and data, including electronic timekeeping records, payroll data, policy documents, and witness testimony. AMA is fully prepared to engage in a structured, orderly discovery process as established by this Court at the Initial Case Management Conference.

Indeed, AMA has already taken affirmative steps to prepare for the discovery process. As noted above, AMA implemented a comprehensive litigation hold on November 2, 2022, ensuring that all potentially relevant documents and ESI are preserved. Beyond the litigation hold, AMA has begun preparing its document production in anticipation of the commencement of formal discovery. Specifically, AMA has initiated coordination with NovaPay Solutions Inc. for the extraction of TimeTrack Pro timekeeping data for the class period. The anticipated scope of this data extraction is significant: the TimeTrack Pro system contains approximately 12 million punch records for approximately 1,850 non-exempt employees across AMA's seven California production facilities — the West Hollywood headquarters, and the Studio City, Sherman Oaks, Burbank, Hollywood, Santa Monica, and El Segundo facilities. AMA's information technology team and outside e-discovery vendor are working with NovaPay Solutions to identify the most efficient method for extracting, processing, and producing this data in a format usable by both parties.

AMA further anticipates serving a third-party subpoena on NovaPay Solutions Inc. by mid-February 2023, consistent with the discovery timeline proposed in AMA's draft Case Management Statement. This subpoena will seek the production of all TimeTrack Pro timekeeping data and related records for the putative class period, ensuring that the electronic timekeeping data central to Plaintiffs' claims is obtained and available for analysis early in the discovery process.

AMA's litigation hold, its ongoing preparation for document production, and its willingness to engage in discovery on a reasonable schedule collectively demonstrate that Plaintiffs' concerns about evidence preservation and discovery delay are unfounded. The regular case management process will provide Plaintiffs with all of the discovery they seek, on a timeline that is fair and reasonable to both parties. There is no justification for the extraordinary remedy of ex parte-ordered expedited discovery.

V. CONCLUSION

For the foregoing reasons, Defendant Aurelius Media Americas Inc. respectfully requests that this Court deny Plaintiffs' Ex Parte Application for Order Permitting Expedited discovery in its entirety.

The Application fails to satisfy the threshold requirements for ex parte relief under California Rules of Court, Rule 3.1202(c). Plaintiffs have not demonstrated the existence of an immediate danger of irreparable harm, have not shown that they will be irreparably harmed absent the requested relief, and have not articulated any basis for departing from the ordinary case management process. AMA has implemented a comprehensive litigation hold ensuring the preservation of all potentially relevant evidence. The evidence Plaintiffs seek — including NovaPay Solutions TimeTrack Pro timekeeping data, payroll records, policy documents, and witness testimony — is preserved and will be produced through the regular discovery process. Moreover, the Application is premature and procedurally deficient, having been filed before AMA has been required to file its responsive pleading, before the parties have participated in an Initial Case Management Conference, and without adequate meet-and-confer efforts.

AMA respectfully requests that this Court permit discovery to proceed on a schedule to be established at the Initial Case Management Conference currently set for March 10, 2023, before the Honorable Raymond Escobedo in Department 34. Such a schedule will provide both parties with a fair, structured, and efficient framework for the exchange of discovery in this putative class action.

AMA remains willing and available to meet and confer with Plaintiffs' counsel at Castellano Byrne & Salas LLP and Veltrano Employment Law Group PC regarding a mutually agreeable discovery schedule at any time. AMA's counsel, Devon Archer, has already proposed a meet-and-confer telephone conference and reiterates that offer here.

Dated: January 6, 2023

CALDERWOOD & HARKNESS LLP

By: ________

Renata Vasquez (SBN 224578) 777 South Flower Street, Suite 4200 Los Angeles, California 90017 Telephone: (213) 555-7200 Facsimile: (213) 555-7201

Email: rvasquez@calderwoodharkness.com

Attorneys for Defendant AURELIUS MEDIA AMERICAS INC.

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and am not a party to the within action. My business address is Calderwood & Harkness LLP, 777 South Flower Street, Suite 4200, Los Angeles, California 90017.

On January 6, 2023, I served the foregoing document described as DEFENDANT AURELIUS MEDIA AMERICAS INC.'S OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION FOR ORDER PERMITTING EXPEDITED DISCOVERY on the interested parties in this action by transmitting a true copy via electronic mail to the email addresses set forth below:

Marco Castellano, Esq. Castellano Byrne & Salas LLP 11755 Wilshire Boulevard, Suite 900 Los Angeles, California 90025

Email: mcastellano@inlawlaw.com

Diane Salas, Esq. Castellano Byrne & Salas LLP 11755 Wilshire Boulevard, Suite 900 Los Angeles, California 90025

Email: dsalas@inlawlaw.com

Sandra Higuera, Esq. Veltrano Employment Law Group PC 350 South Grand Avenue, Suite 2800 Los Angeles, California 90071

Email: shiguera@ridgemontlaw.com

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on January 6, 2023, at Los Angeles, California.

________________________________________

Devon Archer

MARISOL FUENTES, individually and on behalf of all others similarly situated,	Case No.: 22STCV38214
Plaintiff,	Assigned for All Purposes to:

Hon. Raymond Escobedo, Dept. 34

DEFENDANT AURELIUS MEDIA AMERICAS INC.'S OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION FOR ORDER PERMITTING EXPEDITED DISCOVERY

AURELIUS MEDIA AMERICAS INC., a Delaware corporation; and DOES 1 through 50, inclusive,

Date: January 6, 2023

Defendants.

Dept.: 34

Page

I. INTRODUCTION	1
II. RELEVANT PROCEDURAL BACKGROUND	3
III. LEGAL STANDARD	6
IV. ARGUMENT	7
A. Plaintiffs Have Not Demonstrated Irreparable Harm	7
B. The Regular discovery Process Is More Than Adequate	11
C. Plaintiffs' Application Is Premature and Procedurally Improper	13
D. AMA Is Prepared to Engage in discovery on a Reasonable Schedule	16
V. CONCLUSION	18

Page

Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964	6, 8
Emery v. Pacific Employers Ins. Co. (1937) 8 Cal.2d 663	7, 9
Obregon v. Superior Court (1998) 67 Cal.App.4th 424	14

Page

Cal. Bus. & Prof. Code § 17200	3
Cal. Code Civ. Proc. § 2016.040	13
Cal. Lab. Code §§ 226.7, 510, 512, 1194, 1197, 1197.1, 1198	3
Cal. Rules of Court, Rule 3.1202(c)	1, 6
IWC Wage Order 12	3

CALDERWOOD & HARKNESS LLP Renata Vasquez (SBN 224578) Devon Archer (SBN 301462) 777 South Flower Street, Suite 4200 Los Angeles, California 90017 Telephone: (213) 555-7200 Facsimile: (213) 555-7201
Email: rvasquez@calderwoodharkness.com
Email: darcher@calderwoodharkness.com
Attorneys for Defendant AURELIUS MEDIA AMERICAS INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — CENTRAL DISTRICT
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Cases
Statutes and Rules
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Defendant Aurelius Media Americas Inc. ("AMA" or "Defendant") respectfully submits this Opposition to the Ex Parte Application for Order Permitting Expedited discovery (the "Application") filed by Plaintiff Marisol Fuentes ("Plaintiff" or "Plaintiffs") on January 4, 2023. As set forth below, the Application is procedurally deficient, substantively meritless, and should be denied in its entirety.
Plaintiffs, represented by the law firms of Castellano Byrne & Salas LLP (Marco Castellano and Diane Salas) and Veltrano Employment Law Group PC (Sandra Higuera), filed their Application seeking an order from this Court permitting immediate propounding of written discovery — including interrogatories, requests for production of documents, and requests for admission — and further seeking an expedited deposition of AMA's person most knowledgeable ("PMK") regarding timekeeping and payroll practices. Plaintiffs contend that such extraordinary, pre-answer, pre-CMC discovery is necessary to prevent the alleged loss or destruction of evidence relevant to their putative class claims. This contention is baseless.
The Application suffers from three fundamental and independently dispositive defects.
First, Plaintiffs have entirely failed to make the threshold showing required for ex parte relief under the California Rules of Court. Rule 3.1202(c) mandates that an applicant for ex parte relief demonstrate the existence of an immediate danger of irreparable harm, that the moving party will be irreparably harmed absent the relief sought, or that providing notice to the opposing side is impracticable. Plaintiffs have made none of these showings. The wage-and-hour claims at issue relate to historical employment practices allegedly occurring during a class period commencing November 1, 2018. The putative class members have already experienced the alleged harms — if any such harms exist — and there is no continuing or imminent injury that requires emergency judicial intervention. More fundamentally, AMA implemented a comprehensive litigation hold covering all categories of documents and electronically stored information ("ESI") potentially relevant to Plaintiffs' claims on November 2, 2022 — merely one day after the Fuentes Complaint was filed. There is no credible risk of evidence spoliation.
Second, the Application is premature and procedurally improper. It was filed months before the parties have participated in an Initial Case Management Conference, which is currently scheduled for March 10, 2023, before the Honorable Raymond Escobedo in Department 34. AMA has not yet been required to file its Answer or other responsive pleading. The parties have not established a case management schedule, and no discovery plan has been adopted by the Court. Plaintiffs seek to circumvent the orderly case management process by obtaining a one-sided discovery advantage before AMA has even had the opportunity to file its responsive pleading. Moreover, Plaintiffs failed to engage in the meaningful meet-and-confer efforts required by Code of Civil Procedure section 2016.040 before filing the Application. Plaintiffs' counsel sent a single email on January 2, 2023, and filed the Application only two days later — without waiting for, or even acknowledging, AMA's prompt response proposing a meet-and-confer telephone conference.
Third, and relatedly, the regular discovery process — which will commence following the Case Management Conference and the establishment of an appropriate discovery schedule — is more than adequate to address any legitimate discovery needs Plaintiffs may have. AMA does not seek to delay or obstruct discovery. To the contrary, AMA has already begun preparing its document production, including coordinating with its third-party timekeeping vendor, NovaPay Solutions Inc., for the extraction and production of TimeTrack Pro timekeeping data for the relevant class period. AMA is prepared to participate in discovery on a reasonable schedule established by this Court.
For all of these reasons, the Application should be denied.
II. RELEVANT PROCEDURAL BACKGROUND
The relevant procedural history of this action is as follows:
On November 1, 2022, Plaintiff Marisol Fuentes filed a putative class action complaint (the "Fuentes Complaint") in the Superior Court of the State of California, County of Los Angeles, Central District, bearing Case No. 22STCV38214. The Fuentes Complaint was filed on behalf of Ms. Fuentes individually and on behalf of a putative class defined as all non-exempt, hourly employees employed by AMA in the State of California at any time during the period from November 1, 2018 through the date of final judgment. The putative class is estimated to encompass approximately 1,850 individuals.
The Fuentes Complaint asserts causes of action arising from alleged wage-and-hour violations, including but not limited to: (1) failure to provide meal periods in violation of California Labor Code sections 226.7 and 512; (2) failure to authorize and permit rest periods in violation of California Labor Code section 226.7; (3) failure to pay overtime compensation in violation of California Labor Code sections 510 and 1194; (4) failure to pay minimum wages in violation of California Labor Code sections 1194 and 1197; (5) failure to indemnify employees for necessary business expenditures; (6) failure to provide accurate, itemized wage statements; (7) waiting time penalties under California Labor Code sections 201 through 203; (8) unfair business practices in violation of California Business and Professions Code section 17200 et seq. (the "UCL"); and (9) violations of the applicable Industrial Welfare Commission Wage Order, specifically IWC Wage Order 12, governing the motion picture industry.
On November 1, 2022, the same date the Fuentes Complaint was filed, AMA retained the law firm of Calderwood & Harkness LLP to represent it in this matter. The engagement was assigned Calderwood & Harkness Matter No. 1017-00004. The defense team consists of Renata Vasquez, Responsible Partner; Bernard Crawford, Billing Partner; Devon Archer, Lead Associate; and Nadia Petrov, Working Associate.
On November 2, 2022 — just one day after the filing of the Fuentes Complaint — AMA implemented a comprehensive litigation hold. The litigation hold was directed by Gregory Tanaka, AMA's Vice President of Legal and Compliance, and was distributed to all custodians identified as potentially possessing relevant documents and ESI. The hold encompasses all categories of documents and ESI potentially relevant to Plaintiffs' claims, including but not limited to:
•  NovaPay Solutions TimeTrack Pro timekeeping data, including electronic punch-in and punch-out records, auto-deduction records, and Missed Meal Attestation records;
•  Payroll records maintained by AMA and its payroll service providers;
•  Written meal and rest break policies, including all versions in effect during the class period;
•  Employee handbooks and training materials, including all versions in effect during the class period;
•  Production schedules and call sheets for all California production facilities;
•  Internal communications regarding scheduling, meal breaks, rest breaks, overtime practices, and employee classification.
Seven custodians were identified in connection with the litigation hold: Lorraine Okafor (Chief Human Resources Officer), Gregory Tanaka (VP Legal & Compliance), Jonathan Mercer (Senior Vice President of Production Operations), Celine Arroyo (Director of Payroll and Benefits), Dwayne Prescott (Director of Workforce Management), Karen Fong (Regional Production Manager, Southern California), and the direct supervisors of each named plaintiff. Each identified custodian received written notice of the litigation hold, acknowledged receipt in writing, and was instructed to suspend any routine document destruction or data deletion processes applicable to potentially relevant materials.
On November 18, 2022, a related putative class action complaint was filed by plaintiff Patrick Halloran (the "Halloran Complaint") in the same court, bearing Case No. 22STCV39501. The Halloran Complaint asserts substantially similar claims arising from the same alleged course of conduct by AMA.
On November 28, 2022, AMA filed a Notice of Related Case in Case No. 22STCV38214, identifying Case No. 22STCV39501 (the Halloran action) as a related case.
As of the date of this filing, AMA has not yet been required to file its Answer or other responsive pleading. The timeline for filing AMA's responsive pleading is dependent on the completion of service and the resolution of the anticipated consolidation of the Fuentes and Halloran actions. AMA is currently preparing its Answer, a potential Demurrer to the UCL cause of action, and a Stipulation for Consolidation that AMA anticipates filing on or about January 27, 2023.
The Initial Case Management Conference in this action is currently scheduled for March 10, 2023, before the Honorable Raymond Escobedo in Department 34.
On January 4, 2023, Plaintiffs filed the instant Ex Parte Application for Order Permitting Expedited discovery. Plaintiffs seek an order from this Court permitting immediate propounding of written discovery — including interrogatories, requests for production of documents, and requests for admission — and authorizing an expedited deposition of AMA's person most knowledgeable regarding the company's timekeeping systems, payroll practices, and meal and rest break policies. AMA now opposes the Application.
III. LEGAL STANDARD
An ex parte application is an extraordinary procedural mechanism that permits a party to seek relief from the Court on shortened time and, in many circumstances, without the full briefing and hearing process that normally accompanies noticed motions. Because of the extraordinary nature of ex parte relief, the threshold requirements for such applications are stringent and well-established.
California Rules of Court, Rule 3.1202(c) sets forth the standard governing ex parte applications. Under Rule 3.1202(c), an applicant for ex parte relief must make an affirmative factual showing in a declaration that demonstrates one of the following: (1) that there is an immediate danger of irreparable harm to the applicant or to the subject matter of the action; (2) that the applicant will be irreparably harmed absent the relief requested; or (3) that providing notice to the opposing party is impracticable or would render the requested relief ineffective. The rule requires the applicant to set forth with specificity the facts supporting the need for ex parte relief, rather than relying on conclusory assertions or generalized concerns.
The California Court of Appeal has consistently emphasized the narrow scope of ex parte relief. In Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 977, the Court of Appeal explained that ex parte relief constitutes an "extraordinary remedy" that is "available only upon a showing of exigent circumstances." The court stressed that the applicant must demonstrate that the circumstances are truly exceptional and that the normal procedural mechanisms available to the parties — including noticed motions and the regular discovery process — are inadequate to protect the applicant's interests. Absent such a showing, the court has no basis to depart from the ordinary course of litigation.
Similarly, in Emery v. Pacific Employers Insurance Co. (1937) 8 Cal.2d 663, 666, the California Supreme Court held that expedited discovery is "the exception, not the rule," and is appropriate only where the applicant demonstrates "a specific and compelling need that cannot be addressed through the regular discovery process." The Emery court recognized that the orderly administration of justice requires adherence to established procedural timelines, and that permitting parties to bypass those timelines without adequate justification would undermine the integrity of the case management process.
The burden of establishing entitlement to ex parte relief rests squarely on the moving party. It is Plaintiffs' obligation to justify the requested departure from the ordinary course of litigation, and Plaintiffs must do so with specific, competent evidence — not with speculation, conjecture, or generalized assertions of potential harm. As demonstrated below, Plaintiffs have failed to carry this burden.
IV. ARGUMENT
A. Plaintiffs Have Not Demonstrated Irreparable Harm
The threshold requirement for ex parte relief — a showing of immediate danger of irreparable harm — is entirely absent from Plaintiffs' Application. Plaintiffs' claims relate exclusively to historical wage-and-hour practices that allegedly occurred during a class period commencing November 1, 2018. The alleged violations that form the basis of the Fuentes Complaint — including the purported denial of meal and rest break periods, the alleged failure to compensate employees for off-the-clock work, and the alleged improper operation of auto-deduction features in the NovaPay Solutions TimeTrack Pro timekeeping system — are all past events. Whatever injuries the putative class members may have suffered as a result of these alleged practices — and AMA vigorously disputes that any such injuries occurred — have already been suffered. There is no ongoing, continuing harm emanating from the alleged conduct that requires emergency intervention by this Court.
This distinction is critical. Ex parte relief is designed to address situations in which irreparable harm is imminent — that is, situations in which delay will result in concrete, identifiable injury that cannot be remedied through the normal course of litigation. Classic examples include cases involving the threatened destruction of evidence, the imminent dissipation of assets, or the risk that a defendant will flee the jurisdiction. None of those circumstances is present here. Plaintiffs' claims are garden-range wage-and-hour claims seeking monetary damages for alleged past violations. The damages sought, if any are ultimately awarded, are readily calculable from historical timekeeping and payroll records. There is no risk that the passage of a few additional weeks — during which the parties establish a proper case management schedule — will result in any cognizable harm to Plaintiffs or to the putative class.
Plaintiffs attempt to manufacture a showing of irreparable harm by asserting, in vague and conclusory terms, that "evidence may be lost" if expedited discovery is not permitted. This assertion is speculative, unsubstantiated, and flatly contradicted by the facts.
As detailed in Section II above, AMA implemented a comprehensive litigation hold on November 2, 2022 — one day after the Fuentes Complaint was filed and well before Plaintiffs' counsel first raised the issue of expedited discovery. The litigation hold, directed by AMA's Vice President of Legal and Compliance, Gregory Tanaka, covers every category of documents and ESI that Plaintiffs seek through their proposed expedited discovery requests. Specifically, the litigation hold encompasses:
(a) NovaPay Solutions TimeTrack Pro timekeeping data, including electronic punch-in and punch-out records for all non-exempt, hourly employees across all seven of AMA's California production facilities, as well as auto-deduction records and Missed Meal Attestation records generated by the TimeTrack Pro system;
(b) Payroll records maintained by AMA and its payroll service providers, including wage statements, pay stubs, and records of hours worked, overtime hours, and deductions;
(c) Written meal and rest break policies, including all versions of such policies in effect during the putative class period;
(d) Employee handbooks, onboarding materials, and training materials, including all versions in effect during the putative class period;
(e) Production schedules and call sheets for all AMA productions at California facilities during the class period; and
(f) Internal communications — including emails, memoranda, instant messages, and other correspondence — regarding scheduling, meal breaks, rest breaks, overtime practices, and employee classification.
AMA's counsel at Calderwood & Harkness LLP has confirmed the existence and scope of the litigation hold in counsel's meet-and-confer correspondence with Plaintiffs' counsel. Specifically, in a December 15, 2022 letter to Marco Castellano of Castellano Byrne & Salas LLP, Devon Archer, Lead Associate at Calderwood & Harkness LLP, informed Plaintiffs' counsel that AMA had implemented a comprehensive litigation hold covering all categories of documents and ESI potentially relevant to Plaintiffs' claims and identified the categories of materials subject to the hold. Plaintiffs' counsel acknowledged receipt of this correspondence but have not identified any specific deficiency in the scope or implementation of AMA's litigation hold.
Moreover, the primary category of evidence that Plaintiffs seek through their expedited discovery requests — the NovaPay Solutions TimeTrack Pro timekeeping data — is not at risk of loss or destruction. The TimeTrack Pro data is maintained on servers operated and controlled by NovaPay Solutions Inc., a third-party timekeeping and workforce management services provider headquartered at 2200 Powell Street, Suite 600, Emeryville, California 94608. The custodian of AMA's TimeTrack Pro data at NovaPay Solutions is Marcus Yee, Director of Client Data Services. NovaPay Solutions maintains the TimeTrack Pro data in the ordinary course of its business and does not routinely delete or overwrite historical timekeeping records. AMA's agreement with NovaPay Solutions provides for retention of all timekeeping data for a minimum of seven years following the calendar year in which the data was generated. The earliest data potentially relevant to Plaintiffs' claims — data from November 2018 — will not approach the seven-year retention threshold until the end of calendar year 2025 at the earliest. There is no risk whatsoever that this data will be lost or destroyed in the coming weeks or months.
Similarly, AMA's payroll records are maintained in the ordinary course of business and are subject to California's mandatory record-retention requirements. Under applicable California law, employers are required to maintain payroll records for a minimum of three years. AMA's internal records retention policy requires retention of payroll records for a period of seven years, consistent with the company's general records management practices for employment-related documents. Plaintiffs have not identified any payroll records that are at risk of loss or destruction.
In sum, Plaintiffs have failed to identify any specific evidence that is at risk of spoliation, loss, or destruction. Their assertion that "evidence may be lost" is a generalized, unsupported claim that does not satisfy the stringent standard required for ex parte relief. See Datig v. Dove Books, Inc., supra, 73 Cal.App.4th at 977 (ex parte relief requires a showing of "exigent circumstances," not speculative concerns). The Application should be denied on this basis alone.
B. The Regular discovery Process Is More Than Adequate
Even if Plaintiffs had articulated a cognizable concern about evidence preservation — which they have not — the regular discovery process provides a fully adequate mechanism for addressing Plaintiffs' discovery needs. The extraordinary remedy of ex parte-ordered expedited discovery is warranted only when the normal procedural mechanisms are insufficient to protect the moving party's interests. Here, they are more than sufficient.
AMA anticipates filing its Answer to the Fuentes Complaint by mid-February 2023, following resolution of the pending consolidation motion. AMA intends to file a Stipulation for Consolidation of the Fuentes and Halloran actions on or about January 27, 2023. AMA is also preparing a potential Demurrer to the UCL cause of action (the eighth cause of action in the Fuentes Complaint), which AMA believes fails to state facts sufficient to constitute a cause of action under Business and Professions Code section 17200 et seq. Once these threshold pleading issues are resolved, the case will proceed to the Initial Case Management Conference currently scheduled for March 10, 2023, before the Honorable Raymond Escobedo in Department 34.
At the Case Management Conference, this Court will establish a comprehensive discovery schedule tailored to the needs and complexity of this putative class action. AMA has already prepared a draft Case Management Statement proposing the following discovery timeline:
•  Written discovery Phase I: discovery to be propounded by March 1, 2023, with responses due by April 15, 2023. This phase would encompass interrogatories, requests for production of documents, and requests for admission directed to the merits of the putative class claims as well as class certification issues.
•  Third-Party Subpoenas: AMA anticipates issuing a third-party subpoena to NovaPay Solutions Inc. for the production of TimeTrack Pro timekeeping and payroll records by February 15, 2023. This subpoena would be issued even before the CMC to facilitate the early production of the electronic timekeeping data that is central to Plaintiffs' claims.
•  Depositions of Named Plaintiffs: AMA proposes scheduling depositions of the named plaintiffs during the April–May 2023 timeframe.
•  Depositions of Defendant's Witnesses: AMA is prepared to make its witnesses, including a PMK on timekeeping and payroll practices, available for deposition during the April–May 2023 timeframe.
This proposed schedule reflects AMA's good-faith commitment to a prompt and efficient discovery process. The schedule would provide Plaintiffs with all of the discovery they seek through the Application — including the NovaPay Solutions timekeeping data and a PMK deposition — within a matter of weeks after the CMC. The Fuentes Complaint has been pending for only approximately two months. Plaintiffs have not articulated any reason why the additional few weeks required to permit the orderly establishment of a discovery schedule through the CMC process would cause them any cognizable harm.
Plaintiffs have not identified any time-sensitive issue that would justify bypassing the normal discovery schedule. There is no pending destruction of evidence, as discussed above. There is no expiring statute of limitations that would be affected by the discovery timeline. There is no threatened dissipation of assets. AMA is a substantial Delaware corporation with ongoing business operations in the State of California. There is no risk that AMA will become unavailable or unable to respond to discovery.
The regular discovery process, operating within the framework established by this Court at the CMC, is plainly adequate to protect Plaintiffs' interests. The Application is an attempt to short-circuit that process without justification and should be denied.
C. Plaintiffs' Application Is Premature and Procedurally Improper
The Application suffers from additional procedural defects that independently warrant denial.
1. Plaintiffs Failed to Engage in Meaningful Meet-and-Confer
Code of Civil Procedure section 2016.040 establishes the meet-and-confer requirement applicable to discovery disputes. Section 2016.040 provides that a "meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion." This requirement is not a mere formality; it reflects the Legislature's strong policy in favor of resolving discovery disputes through informal negotiation before burdening the Court with contested motions.
Plaintiffs' compliance with this requirement was woefully deficient. The factual record regarding the parties' pre-filing communications is as follows:
On January 2, 2023, Marco Castellano of Castellano Byrne & Salas LLP sent a single email to Devon Archer, Lead Associate at Calderwood & Harkness LLP. In this email, Mr. Castellano requested that AMA agree to early discovery, including the immediate propounding of written discovery and an expedited PMK deposition. The email did not identify any specific urgency or exigent circumstance justifying the request.
On January 3, 2023 — the very next business day following receipt of Mr. Castellano's email — Mr. Archer responded on behalf of AMA. Mr. Archer's response indicated AMA's willingness to discuss a reasonable discovery schedule and proposed a meet-and-confer telephone call for January 6, 2023 to discuss the parties' respective positions regarding the timing and scope of discovery.
On January 4, 2023 — only two days after sending the initial email, and only one day after receiving AMA's response — Plaintiffs filed the Ex Parte Application without waiting for, or even acknowledging, AMA's proposal for a meet-and-confer conference.
This sequence of events demonstrates a complete failure to engage in the meaningful meet-and-confer process required by section 2016.040 and the California Rules of Court. Plaintiffs sent a single email, received a prompt and constructive response proposing a telephonic conference, and then immediately proceeded to file an ex parte application — preempting the very meeting that AMA had proposed. This is not a good-faith effort at informal resolution. It is a transparent attempt to create the appearance of compliance with the meet-and-confer requirement while circumventing its substance.
The Court of Appeal has recognized that courts may deny discovery motions where the moving party failed to make adequate meet-and-confer efforts. In Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431, the Court of Appeal held that the meet-and-confer requirement "must be conducted in good faith" and that a party's failure to engage in meaningful efforts to resolve a discovery dispute informally may itself constitute grounds for denial of the motion. Here, Plaintiffs' meet-and-confer efforts consisted of sending a single email and then filing suit before the response could be acted upon. This falls far short of the standard established by Obregon and section 2016.040.
The failure to meet and confer is not merely a technical defect. Had Plaintiffs engaged in a genuine dialogue with AMA's counsel, they would have learned that AMA had already implemented a comprehensive litigation hold, that AMA was preparing to issue a third-party subpoena to NovaPay Solutions for timekeeping data, and that AMA was willing to discuss a reasonable discovery schedule. This information would have addressed, or at least substantially mitigated, whatever concerns prompted the Application. Plaintiffs' decision to bypass this process and proceed directly to ex parte relief was unjustified and prejudicial to AMA.
2. The Application Is Premature in Light of the Case's Procedural Posture
Beyond the meet-and-confer deficiency, the Application is fundamentally premature. This case is in its earliest possible procedural stage. Consider the following:
•  AMA has not yet filed its Answer or other responsive pleading. The timeline for AMA's responsive pleading is dependent on the completion of service and the resolution of the anticipated consolidation of the Fuentes and Halloran actions.
•  A related action (the Halloran Complaint, Case No. 22STCV39501) has been filed, and consolidation of the two actions is anticipated. A Stipulation for Consolidation is expected to be filed on or about January 27, 2023.
•  AMA is preparing a potential Demurrer to the UCL cause of action, which may narrow the scope of the claims at issue and, consequently, the scope of discovery required.
•  The parties have not yet appeared at an Initial Case Management Conference. The CMC is currently scheduled for March 10, 2023.
•  No case management order has been entered. No discovery schedule has been established. No discovery cut-off date has been set.
In this context, Plaintiffs' Application effectively asks this Court to permit one-sided discovery at a stage when AMA has not even been required to file its responsive pleading. This is precisely the kind of premature, asymmetric discovery that the case management process is designed to prevent. The Case Management Conference exists to allow the Court to assess the scope and complexity of the case, hear from both sides regarding discovery needs and scheduling, and establish a structured, balanced framework for the conduct of discovery. Plaintiffs seek to leapfrog this entire process and obtain a discovery advantage before the case management framework has been established.
This approach is contrary to the interests of orderly litigation management and should not be countenanced. The CMC is only two months away. The claims at issue involve historical practices spanning a four-year class period. A two-month delay in the commencement of discovery — during which AMA will file its responsive pleading, the parties will brief and resolve the consolidation issue, and the Court will establish a case management schedule — is manifestly reasonable and will not prejudice Plaintiffs in any way.
D. AMA Is Prepared to Engage in discovery on a Reasonable Schedule
AMA wishes to make clear to this Court that it does not seek to delay or obstruct the discovery process. AMA recognizes that this putative class action involves significant factual issues that will require the exchange of substantial volumes of documents and data, including electronic timekeeping records, payroll data, policy documents, and witness testimony. AMA is fully prepared to engage in a structured, orderly discovery process as established by this Court at the Initial Case Management Conference.
Indeed, AMA has already taken affirmative steps to prepare for the discovery process. As noted above, AMA implemented a comprehensive litigation hold on November 2, 2022, ensuring that all potentially relevant documents and ESI are preserved. Beyond the litigation hold, AMA has begun preparing its document production in anticipation of the commencement of formal discovery. Specifically, AMA has initiated coordination with NovaPay Solutions Inc. for the extraction of TimeTrack Pro timekeeping data for the class period. The anticipated scope of this data extraction is significant: the TimeTrack Pro system contains approximately 12 million punch records for approximately 1,850 non-exempt employees across AMA's seven California production facilities — the West Hollywood headquarters, and the Studio City, Sherman Oaks, Burbank, Hollywood, Santa Monica, and El Segundo facilities. AMA's information technology team and outside e-discovery vendor are working with NovaPay Solutions to identify the most efficient method for extracting, processing, and producing this data in a format usable by both parties.
AMA further anticipates serving a third-party subpoena on NovaPay Solutions Inc. by mid-February 2023, consistent with the discovery timeline proposed in AMA's draft Case Management Statement. This subpoena will seek the production of all TimeTrack Pro timekeeping data and related records for the putative class period, ensuring that the electronic timekeeping data central to Plaintiffs' claims is obtained and available for analysis early in the discovery process.
AMA's litigation hold, its ongoing preparation for document production, and its willingness to engage in discovery on a reasonable schedule collectively demonstrate that Plaintiffs' concerns about evidence preservation and discovery delay are unfounded. The regular case management process will provide Plaintiffs with all of the discovery they seek, on a timeline that is fair and reasonable to both parties. There is no justification for the extraordinary remedy of ex parte-ordered expedited discovery.
V. CONCLUSION
For the foregoing reasons, Defendant Aurelius Media Americas Inc. respectfully requests that this Court deny Plaintiffs' Ex Parte Application for Order Permitting Expedited discovery in its entirety.
The Application fails to satisfy the threshold requirements for ex parte relief under California Rules of Court, Rule 3.1202(c). Plaintiffs have not demonstrated the existence of an immediate danger of irreparable harm, have not shown that they will be irreparably harmed absent the requested relief, and have not articulated any basis for departing from the ordinary case management process. AMA has implemented a comprehensive litigation hold ensuring the preservation of all potentially relevant evidence. The evidence Plaintiffs seek — including NovaPay Solutions TimeTrack Pro timekeeping data, payroll records, policy documents, and witness testimony — is preserved and will be produced through the regular discovery process. Moreover, the Application is premature and procedurally deficient, having been filed before AMA has been required to file its responsive pleading, before the parties have participated in an Initial Case Management Conference, and without adequate meet-and-confer efforts.
AMA respectfully requests that this Court permit discovery to proceed on a schedule to be established at the Initial Case Management Conference currently set for March 10, 2023, before the Honorable Raymond Escobedo in Department 34. Such a schedule will provide both parties with a fair, structured, and efficient framework for the exchange of discovery in this putative class action.
AMA remains willing and available to meet and confer with Plaintiffs' counsel at Castellano Byrne & Salas LLP and Veltrano Employment Law Group PC regarding a mutually agreeable discovery schedule at any time. AMA's counsel, Devon Archer, has already proposed a meet-and-confer telephone conference and reiterates that offer here.
Dated: January 6, 2023
CALDERWOOD & HARKNESS LLP
By: ________
Renata Vasquez (SBN 224578) 777 South Flower Street, Suite 4200 Los Angeles, California 90017 Telephone: (213) 555-7200 Facsimile: (213) 555-7201
Email: rvasquez@calderwoodharkness.com
Attorneys for Defendant AURELIUS MEDIA AMERICAS INC.
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and am not a party to the within action. My business address is Calderwood & Harkness LLP, 777 South Flower Street, Suite 4200, Los Angeles, California 90017.
On January 6, 2023, I served the foregoing document described as DEFENDANT AURELIUS MEDIA AMERICAS INC.'S OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION FOR ORDER PERMITTING EXPEDITED DISCOVERY on the interested parties in this action by transmitting a true copy via electronic mail to the email addresses set forth below:
Marco Castellano, Esq. Castellano Byrne & Salas LLP 11755 Wilshire Boulevard, Suite 900 Los Angeles, California 90025
Email: mcastellano@inlawlaw.com
Diane Salas, Esq. Castellano Byrne & Salas LLP 11755 Wilshire Boulevard, Suite 900 Los Angeles, California 90025
Email: dsalas@inlawlaw.com
Sandra Higuera, Esq. Veltrano Employment Law Group PC 350 South Grand Avenue, Suite 2800 Los Angeles, California 90071
Email: shiguera@ridgemontlaw.com
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on January 6, 2023, at Los Angeles, California.
________________________________________
Devon Archer
MARISOL FUENTES, individually and on behalf of all others similarly situated, | Case No.: 22STCV38214
Plaintiff, | Assigned for All Purposes to:
Hon. Raymond Escobedo, Dept. 34
v.
DEFENDANT AURELIUS MEDIA AMERICAS INC.'S OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION FOR ORDER PERMITTING EXPEDITED DISCOVERY
AURELIUS MEDIA AMERICAS INC., a Delaware corporation; and DOES 1 through 50, inclusive,
Date: January 6, 2023
Defendants. | Time: 8:30 a.m.
Dept.: 34
Page
I. INTRODUCTION | 1
II. RELEVANT PROCEDURAL BACKGROUND | 3
III. LEGAL STANDARD | 6
IV. ARGUMENT | 7
A. Plaintiffs Have Not Demonstrated Irreparable Harm | 7
B. The Regular discovery Process Is More Than Adequate | 11
C. Plaintiffs' Application Is Premature and Procedurally Improper | 13
D. AMA Is Prepared to Engage in discovery on a Reasonable Schedule | 16
V. CONCLUSION | 18
Page
Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964 | 6, 8
Emery v. Pacific Employers Ins. Co. (1937) 8 Cal.2d 663 | 7, 9
Obregon v. Superior Court (1998) 67 Cal.App.4th 424 | 14
Page
Cal. Bus. & Prof. Code § 17200 | 3
Cal. Code Civ. Proc. § 2016.040 | 13
Cal. Lab. Code §§ 226.7, 510, 512, 1194, 1197, 1197.1, 1198 | 3
Cal. Rules of Court, Rule 3.1202(c) | 1, 6
IWC Wage Order 12 | 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

TABLE OF CONTENTS

TABLE OF AUTHORITIES

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

II. RELEVANT PROCEDURAL BACKGROUND

III. LEGAL STANDARD

IV. ARGUMENT

V. CONCLUSION

CALDERWOOD & HARKNESS LLP

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

Record

Parties

Dates

Amounts