Cruz, Hilda vs. Monrovia Nursery Company

Defendant seeks the following relief: 1. Cessation of Misleading Content: That Plaintiffs' counsel remove the website, social media and advertisements that contain "wage theft," investigation" or that Plaintiffs' counsel "specializes" in employment law.

2. Mandatory Disclosures in Future Communications: That Plaintiffs' counsel shall include, in future communications that no class has been certified in this matter, that Monrovia denies all allegations, that recovery is contingent on class certification, finding of liability or settlement.

3. Production of Prior Communications: That Plaintiffs' counsel produce copies of prior communications.

4. Identification of Unrepresented Employees Contacted: That Plaintiffs' counsel produce the names and contact information of current and former employees with whom Plaintiffs' counsel has communicated.

5. Disclosure of Source of Contact Information: That Plaintiffs' counsel disclose how they obtained contact information, the total number of personally addressed solicitations and "Confirmation, under oath, that none of the contact information used for such solicitations was derived from this litigation, from documents Monrovia produced (whether subject to a protective order or otherwise), from information learned at any deposition, or from any prior or current named plaintiff." In opposition, Plaintiff argues that Defendant has unclean hands via the use of an agent to settle with the previous class representatives, that no verifiably false statements are contained in the advertisements or solicitations above and that the requested relief goes beyond a protective order via seeking to compel various documents.

Authority and Analysis In Parris v. Superior Court (2003) 109 Cal.App.4th 285, 291, the named plaintiffs moved "...in the trial court for an order permitting precertification notice to potential class members and for approval of the proposed notice and method of dissemination." The appellate court held that "Because no judicial approval was needed for the proposed precertification communication with potential class members, Parris and Lopez's motion for leave to engage in such communications was unnecessary and should have been dismissed by the trial court on that ground." (Id. at 299.)

In that context, the appellate court stated "A trial court may rule on the propriety of precertification communications only if the opposing party seeks an injunction, protective order or other relief" and that: "If such a motion is brought, the trial court may impose restrictions on such communications only "by a showing of direct, immediate and irreparable harm." [citation omitted] Broad-based assertions that a proposed informational notice is "unfair," contains some inaccurate statements, or is presented in a misleading form are simply insufficient bases for imposition of judicial limitations on protected speech in the form of a prior restraint.

Even then, any restrictions " 'must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact' " on the right to free speech. [citation omitted] Finally, "the restraint 'must have been accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech.' [Citation.]" [citation omitted]" (Id. at 299-300.) In other words, "absent specific evidence of abuse, an order prohibiting or limiting precertification communication with potential class members by the parties to a putative class action is an invalid prior restraint" of speech. (Id. at 298.)

The Parris court further noted " The requirement of court approval for precertification communications is a classic example of a prior restraint on speech" and that although "'[p]rior restraints are not unconstitutional per se' prior restraints have long been held presumptively unconstitutional." (Id. at 296.) "'[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. [citation omitted] Prior restraints on speech are permissible only in certain narrow circumstances constituting 'exceptional cases.' [citation omitted] The party seeking to enjoin speech 'thus carries a heavy burden of showing justification for the imposition of such a restraint.'[citation omitted]" (Id. at 296-297.)

Here, therefore, Defendant properly seeks a protective order regarding precertification communications with potential class members, though it bears the burden as to the relief requested involving future communications. The Court further notes that in Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 91, "Gulf began to send notices to the 643 employees eligible for backpay, stating the exact amount available to each person in return for execution within 30 days of a full release of all discrimination claims dating from the relevant time period." "Gulf filed a motion in the District Court seeking an order limiting communications by parties and their counsel with class members.

An accompanying brief described the EEOC conciliation agreement, asserting that 452 of the 643 employees entitled to backpay under that agreement had signed releases and been paid by the time the

class action was filed. Gulf stated that after it was served in the case, it ceased sending backpay offers and release forms to class members." (Id. at 92.) The district court "...entered a temporary order prohibiting all communications concerning the case from parties or their counsel to potential or actual class members...It was not based on any findings of fact." (Id. at 93.) The order was later modified to include "...a complete ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the prior approval of the court.

It gave examples of communications, including any solicitation of legal representation of potential or actual class members, and any statements "which may tend to misrepresent the status, purposes and effects of the class action" or "create impressions tending without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice." (Id. at 94-95.) When the appeal was heard en banc, "A majority opinion joined by 13 judges held that the order was an unconstitutional prior restraint on expression accorded First Amendment protection." (Id. at 98.)

The Supreme Court reviewed the matter as to whether the order limiting communications was constitutionally permissible, concluding that it was not. The Supreme Court noted, however: "Class actions serve an important function in our system of civil justice. They present, however, opportunities for abuse as well as problems for courts and counsel in the management of cases. Because of the potential for abuse, a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties.

But this discretion is not unlimited, and indeed is bounded by the relevant provisions of the Federal Rules. [citation omitted.]...." (Id. at 100-101.) "Because of these potential problems, an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties... In addition, such a weighing -- identifying the potential abuses being addressed -- should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances." (Id. at 101-102.) "We recognize the possibility of abuses in class-action litigation, and agree with petitioners that such abuses may implicate communications with potential class members.

But the mere possibility of abuses does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Rules" (Id. at 104.) As such, the Court turns to the alleged abuses or misrepresentations identified as to "wage theft," "investigation," and that Plaintiffs' counsel specializes in employment law. In support of this motion, Defendant cites to Sheller v. Superior Court (2008) 158 Cal.App.4th 1697 and Hernandez v.

Vitamin Shoppe Industries Inc. (2009) 174 Cal.App.4th 1441. Sheller examined the extent of the trial court's power to sanction the conduct of an out of state attorney admitted pro hac vice where counsel, in June 2005, "...sent a written communication to some 350 Farmers policyholders, seeking additional class representatives. The letter was in the form of a flyer, boldly captioned, " Attention Farmers Insurance Group Policy Holders!!! " The flyer began, "A potential class action lawsuit has been filed against [Farmers] in the State Court of Los Angeles County.

We are concerned Farmers may have given you misleading information about this lawsuit. Our intention is to help policyholders and give them accurate information." The flyer went on to state, " If you have purchased such a policy, we may be able to help you. We are looking for other people who have purchased such Farmers policies. If you have, you may be accepted as a 'class representative.' If accepted, you are paid for your time in an amount set by the judge." (Original boldface.)" (Sheller, supra, 158 Cal.

App. 4 th at 1703.) Farmers moved for a temporary restraining order based on this communication and "on two other communications which allegedly contained factual misrepresentations about the insurance policies at issue: a September 2003 letter and a telephone survey of 500 Farmers policyholders Attorney Sheller had commissioned" and which, in a September 2003 letter, "informed Farmers's policyholders that, if they purchased one of the challenged policies and "are paying less than the maximum premium, the chances are very high your

policy will lapse." Farmers took the position that, while lapse was conceivable, there was no basis to assert the chances of lapse were "very high." The telephone survey contained some questions that were somewhat "loaded." For example, it asked policyholders, "[A] phrase in the policy says, 'the actual amount and frequency of your premium payments will affect the values and duration of your policy.' Did you understand that this means, that even if you make regular payments of the planned premiums, you could lose your insurance before age 95?"" (Id. at 1703, FN6.)

The trial court held the September 2003 letter and telephone survey "appeared loaded" but did not rise to the level of "inappropriate" but that June 2005 flyer, containing the statement "If accepted, you are paid for your time in an amount set by the judge," to be "inappropriate and simply untrue. Not only are class representatives not always entitled to recover, they may in fact be liable for court costs if the defendant prevails." (Id. at 1704, FN 8.) The trial court thereafter "...restrained plaintiffs' counsel from any further precertification communications with potential classmembers without court preapproval." (Id. at 1704.)

Relevant here, the appellate court concluded as follows: "While we conclude that the trial court lacked jurisdiction to impose the sanctions ordered, this should in no way be interpreted as our approval of Attorney Sheller's conduct in this matter. Attorney Sheller mailed an advertising flyer to 350 of Farmers's policyholders, seeking additional class representatives and informing them, "If accepted, you are paid for your time in an amount set by the judge." This statement is completely false; it indicates to the policyholders that they would be paid "for [their] time," in other words, that they would be paid regardless of the outcome of the action." (Id. at 1717.)

As to Hernandez, supra, 174 Cal.App.4 th at 1445 current and former employees brought three (3) class actions against the defendant. Preliminary approval as to one of the three matters had been granted by the trial court in addition to conditional certification for settlement purposes. (Id. at 1446-1447) However, counsel representing some of the plaintiffs in two of the actions that had not settled contacted class members whom he did not represent, but who were represented by other counsel, and urged those members to opt out of the settlement, retain him as counsel and join one of the other class actions as plaintiffs. (Id. at 1447) The trial court found that the "...letters were misleading, violated the Rules of Professional Conduct regarding communications with represented parties, and had attempted to interfere with the proper procedures governing the proposed settlement of the case.

It ordered that a corrective notice be sent, directed [counsel] to refrain from any further communications with class members that he did not represent, and granted the request for monetary sanctions, subject to further hearing on the amount." (Id. at 1448) The appellate court concluded that "...the [trial] court had the authority to protect class members from improper, unilateral communications after the conditional certification of the class and approval of class notice. Second, [counsel's] letters to members of the conditionally certified class were communications in violation of rule 2-100." (Id. at 1461.)

As to the present matter, the Court finds no application of either Hernandez or Sheller. To start, the facts of Hernandez are not aligned with the facts noted above, as there is no conditional certification, no communication with represented parties and no preliminary settlement. As to Sheller, the court focused on the phrase "If accepted, you are paid for your time in an amount set by the judge." Here, the Court finds no equivalent "misrepresentation" as to either "wage theft" or "investigation."

The Court does not find that use of the term "wage theft" implies a criminal matter has been initiated especially in context with the remainder of the text that states "Blackstone law has filed a lawsuit against Monrovia for unpaid wages, unpaid overtime, working off the clock, not getting meal / rest breaks on time (or at all), and wage theft" as well as "PAID ATTORNEY ADVERTISEMENT" and "Past results do not guarantee future outcomes. Each case is unique and depends on specific circumstances. This communication does not create an attorney-client relationship.

This is not an official investigation by any government agency." Further, "investigations" are not within exclusive purview of government agencies, as the term "private investigator" is common. The same applies to the advertisement in the Spanish language. Further, as to the term "specializes" the Court agrees that California Rule of Professional Conduct 7.4(b)

expressly permits a communication that a lawyer "may also communicate that his or her practice specializes in, is limited to, or is concentrated in a particular field of law, subject to the requirements of rule 7.1" and that only a designation of "certified specialist" is prohibited under 7.4(a). As to Rule 7.1, it states "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the communication considered as a whole not materially misleading."

Again, the Court does not find that communication of specializing in employment law is not the equivalent of a statement containing the term "certified specialist." As such, the Court identifies no misleading statements or misrepresentations equivalent to Sheller or Hernandez. Additionally, the Court notes that in Pirjada v. Superior Court (2011) 201 Cal.App.4th 1074, the court permitted plaintiffs' counsel to use "informal means" (means that are beyond obtaining a court order following discovery as to class contact information) to identify a potential replacement class representative. (Id. at 1086.)

Therefore, the Court denies the motion. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

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