This case was last updated from San Mateo County Superior Courts on 07/20/2018 at 17:39:21 (UTC).

DONALD TIWARI VS MERRILL'S PACKAGING INC

Case Summary

On 01/11/2013 DONALD TIWARI filed a Labor - Other Labor lawsuit against MERRILL'S PACKAGING INC. This case was filed in San Mateo County Superior Courts, Southern Branch Hall Of Justice And Records located in San Mateo, California. The Judges overseeing this case are Foiles, Robert D, Weiner, Marie S, Dylina, Steven L, Novak, Lisa A, Dylina, Steven L., Novak, Lisa A. and Weiner, Marie S.. The case status is Disposed - Other Disposed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *****9070

  • Filing Date:

    01/11/2013

  • Case Status:

    Disposed - Other Disposed

  • Case Type:

    Labor - Other Labor

  • Court:

    San Mateo County Superior Courts

  • Courthouse:

    Southern Branch Hall Of Justice And Records

  • County, State:

    San Mateo, California

Judge Details

Judges

Foiles, Robert D

Weiner, Marie S

Dylina, Steven L

Novak, Lisa A

Dylina, Steven L.

Novak, Lisa A.

Weiner, Marie S.

 

Party Details

Plaintiffs

DONALD TIWARI

TIWARI, DONALD

Defendant

MERRILL'S PACKAGING INC

Attorney/Law Firm Details

Plaintiff Attorneys

SETAREH, SHAUN

SETAREH, CHAIM SHAUN

Defendant Attorney

GARRITY, RONALD F

 

Court Documents

Document.

FILING (9) Comment FILED: SATISFACTION OF JUDGMENT IN FULL FILED BY JUDGMENT CREDITOR FILED.

Document.

FILING (7) Comment FILED: JUDGMENT & ORDER GRANTING MTN FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT FILED.

Order received.

PROPOSED ORDER (4) Comment POR: PROPOSED ORDER RECEIVED.

Declaration.

DECLARATION (21) Comment DECL: DECLARATION OF LISA LEINNGER ON BEHALF OF CLAIMS ADMINISTRATOR WITH RESPECT TO NOTICE FILED BY DONALD TIWARI

Motion.

NOTICE (3) Comment NM: NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; MEMORANDUM OF FILED BY MERRILL'S PACKAGING INC

Proof of Service by MAIL of.

PROOF OF SERVICE (3) Comment PSN3: PROOF OF SERVICE (BY MAIL) OF SECOND AMENDED COMPLAINT SERVED ON SEE SERVICE LIST WITH A SERVICE DATE OF 11/12/13 FILED.

Document.

FILING (2) Comment FILED: FACSIMILE TRANSMISSION COVER SHEET FILED.

Order.

ORDER Comment O2: ORDER RE JOINT STIPULATION TO GRANT PLAINTIFF LEAVE TO FILE SECOND AMENDED COMPLAINT SIGNED BY BJ ON 10/23/13 FILED.

Civil Case Cover Sheet.

COVERSHEET Comment CCS: CIVIL CASE COVERSHEET RECEIVED

Acknowledgment of Satisfaction of Judgment.

ACKNOWLEDGMENT Comment ASJ2: ACKNOWLEDGMENT OF FULL SATISFACTION OF JUDGMENT AS TO 2ND AMENDED COMPLAINT OF TIWARI FILED

Declaration.

DECLARATION (18) Comment DECL: DECLARATION OF LISA LEININGER ON BEHALF OF CLAIMS ADMINISTATOR WITH RESPECT TO FILED BY DONALD TIWARI

Order.

ORDER (14) Comment O2: ORDER GRANTING THE JOINT AMENDED MOTION FOR PREL.APPROVAL OF CLASS SETTLEMENT SIGNED BY MSW ON 09/11/14 FILED.

Proof of Service.

PROOF OF SERVICE (7) Comment POSI: PROOF OF SERVICE OF JOINT NOTICE OF AMENDED MOTION ETC SERVED ON SEE SERVICE LIST BY FEDERAL EXPRESS & ELECTRONIC MAIL WITH A SERVICE DATE OF 08/12/14.

Order.

ORDER (2) Comment O2: ORDER RE:JOINT STIP. TO CONTINUE HRG FOR PRELIMINARY APPROVAL & CMC SIGNED BY MSW ON 06/27/14 FILED.

Proof of Service by MAIL of.

PROOF OF SERVICE (6) Comment PSN3: PROOF OF SERVICE (BY MAIL) OF CASE MANAGEMENT ORDER #1 SERVED ON SEE SERVICE LIST WITH A SERVICE DATE OF 06/19/14 FILED.

Document.

FILING (4) Comment FILED: CLERK'S NOTICE OF FEES DUE - COMPLEX LITIGATION (TO DEFENDANT) FILED.

Proof of Service by MAIL of.

PROOF OF SERVICE (4) Comment PSN3: PROOF OF SERVICE (BY MAIL) OF SEE LIST SERVED ON SHAUN SETAREH WITH A SERVICE DATE OF 03/28/14 FILED.

Document.

FILING Comment FILED: JOINT STIPULATION TO GRANT PLAINTIFF LEAVE TO FILE SECOND AMENDED COMPLAINT FILED.

45 More Documents Available

 

Docket Entries

  • 12/18/2014
  • Disposition: Judgment; Judgment Type; Judgment; Judgment - Monetary Award; Awarded To: TIWARI DONALD; Awarded Against: MERRILL'S PACKAGING INC; Comment: JUDGMENT ENTERED 12/18/14 JUDGMENT ENTERED ON 2ND AMENDED COMPLAINT OF TIWARI FOR DONALD TIWARI JUDGMENT ENTERED ON 2ND AMENDED COMPLAINT OF TIWARI AGAINST MERRILL'S PACKAGING INC SEE ORDER/JUDGMENT FILED 12/18/14 FOR DETAILS OF JUDGMENT.

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  • 02/18/2015
  • View Court Documents
  • Document. Additional Info: FILING (9) Comment FILED: SATISFACTION OF JUDGMENT IN FULL FILED BY JUDGMENT CREDITOR FILED.

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  • 01/28/2015
  • Conversion Action. Additional Info: Comment JST: JUDGMENT ENTERED 12/18/14 -- SATISFIED

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  • 01/28/2015
  • View Court Documents
  • Acknowledgment of Satisfaction of Judgment. Additional Info: ACKNOWLEDGMENT Comment ASJ2: ACKNOWLEDGMENT OF FULL SATISFACTION OF JUDGMENT AS TO 2ND AMENDED COMPLAINT OF TIWARI FILED

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  • 12/18/2014
  • Conversion Minute. Additional Info: Comment FFT: SEE ORDER/JUDGMENT FILED 12/18/14 FOR DETAILS OF JUDGMENT.

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  • 12/18/2014
  • Conversion Minute. Additional Info: Comment JAGD: JUDGMENT ENTERED ON 2ND AMENDED COMPLAINT OF TIWARI AGAINST MERRILL'S PACKAGING INC

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  • 12/18/2014
  • Conversion Minute. Additional Info: Comment JFP: JUDGMENT ENTERED ON 2ND AMENDED COMPLAINT OF TIWARI FOR DONALD TIWARI

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  • 12/18/2014
  • View Court Documents
  • Document. Additional Info: FILING (7) Comment FILED: JUDGMENT & ORDER GRANTING MTN FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT FILED.

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  • 12/18/2014
  • Document. Additional Info: Comment FILED: JUDGMENT & ORDER GRANTING MTN FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT FILED.

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  • 12/18/2014
  • View Court Documents
  • Order. Additional Info: ORDER (6) Comment O2: ORDER GRANTING PLTF'S MTN FOR AWARD OF ATTY FEES REIMBURSEMENT OF COSTS, ETC, SIGNED BY M.S. WEINER ON 12/18/14 FILED.

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172 More Docket Entries
  • 05/02/2013
  • Financial info for MERRILL'S PACKAGING INC : Case Payment Receipt # 201305020642 MERRILL'S PACKAGING INC $435.00

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  • 05/02/2013
  • Financial info for MERRILL'S PACKAGING INC : Transaction Assessment $435.00

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  • 05/02/2013
  • Financial: MERRILL'S PACKAGING INC; Total Financial Assessment $1,705.00; Total Payments and Credits $1,705.00

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  • 11/17/2014
  • Financial info for TIWARI, DONALD : Case Payment Receipt # 201411170721 TIWARI, DONALD $90.00

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  • 11/17/2014
  • Financial info for TIWARI, DONALD : Transaction Assessment $90.00

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  • 07/02/2014
  • Financial info for TIWARI, DONALD : Case Payment Receipt # 201407020682 TIWARI, DONALD $1000.00

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  • 07/02/2014
  • Financial info for TIWARI, DONALD : Transaction Assessment $1000.00

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  • 01/11/2013
  • Financial info for TIWARI, DONALD : Case Payment Receipt # 201301110554 TIWARI, DONALD $435.00

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  • 01/11/2013
  • Financial info for TIWARI, DONALD : Transaction Assessment $435.00

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  • 01/11/2013
  • Financial: TIWARI, DONALD; Total Financial Assessment $1,525.00; Total Payments and Credits $1,525.00

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Complaint Information

RONALD F. GARRITY, BAR NO. 110488

ROBERT J. WENBOURNE, BAR NO. 132582 Fl ED

SIMPSON, GARRITY, INNES & JACUZZI UNTY

MATEO CO

Professional Corporation

NOV 2 6 2013

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO

DONALD TIWARLI, on behalf of himself, and all others similarly situated,

Case No. CIV 519070

PROPOSED CLASS ACTION

Plaintifi(s),

ANSWER OF DEFENDANT

MERRILL’S PACKAGING, INC. TO

UNVERIFIED SECOND AMENDED COMPLAINT

MERRILL’S PACKAGING, INC., a California Corporation, and DOES 1 through 50, Inclusive,

» s S et o

Defendant(s). TRIAL DATE: Not scheduled.

Defendant Merrill’s Packaging, Inc., a California Corporation (“Defendant”) in answer to the unverified Second Amended Complaint (“Second Amended Complaint”) of Plaintiff Donald Tiwari (“Plaintiff”), generally and specifically denies each and every, all and singular, conjunctively and disjunctively, the allegations of said Second Amended Complaint, and in this connection, Defendant denies that Plaintiff, or anyone he seeks to represent (hereinafter, “Plaintiff’s proposed classes and/or sub-classes’), has or have been injured or damaged in any of the sums mentioned in said Second Amended Complaint, or in any sum,result of any

act or omission of Defendant. /1

{CLIENT FILES/5335/5/00267165.DOC) -1

AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE

AS A FIRST, SEPARATE AND AF FIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that each such purported cause of action fails to state facts sufficient to constitute any cause of action or claim for which relief may be granted.

SECOND AFFIRMATIVE DEFENSE

AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that the alleged claims are barred in whole or in part by the applicable statute(s) of limitations, including, but not limited to: California Code of Civil Procedure Sectiofis 338, 340 and 343, California Business and Professions Code Section 17208, and California Labor Code Section 203(b).

THIRD AFFIRMATIVE DEFENSE

AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that Defendant did not maintain any applied policies not in compliance with any provisions of California law, and the factual and/or legal questions are not of a common or general interest as the facts necessary to establish liability require individualized . evidence as to each employee of each proposed class and/or proposed sub-class; therefore, the | alleged claims cannot be maintained as class or representative actions.

FOURTH AFFIRMATIVE DEFENSE

AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that these alleged claims cannot be maintained as a class or representative action because the action lacks commonality and typicality as the employees are not similarly situated to each other or to the members of the proposed class or sub- classes as alleged. |

FIFTH AFFIRMATIVE DEFENSE

AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported

cause of action, Defendant alleges that class or representative procedures are not a superior

method for maintaining these claims and/or issues of law and fact do not predominate. CLIENT FILES/5335/5/00267165.DOC

SIXTH AFFIRMATIVE DEFENSE

AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that Plaintiff is not a suitable representative of any class or sub- class of Defendant’s employees.

SEVENTH AFFIRMATIVE DEFENSE

AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that Plaintiff is not a suitable representative of any class or sub-class of Defendant’s employees as he will not fairly and adequately represent and/or protect the interests of the proposed class and/or sub-classes for reasons including, but not limited to, his bias, lack of credibility and conflict of interest.‘

EIGHTH AFFIRMATIVE. DEFENSE

AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause of action, Defendant alleges that it acted in all times herein with the express or implied consent of P!aintiff apd/or Plaintiff’s proposed classes and/or sub-classes.

NINTHAFFIRMATIVE DEFENSE

AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that the alleged claims are barred because Plaintiff and/o} Plaintiff’s proposed classes and/or sub-classes approved, consented to, authorized and/or ratified the alleged conduct of Defendant complained of in the Second Amended Complaint.

TENTH AFFIRMATIVE DEFENSE

AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that a failure, if any, by Defendant to pay wages allegedly due to Plaintiff and/or Plaintiff’s proposed classes and/or sub-classes was based on a good faith dispute as to whether those wages were due.

ELEVENTH AFFIRMATIVE DEFENSE

AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every

purported cause of action, Defendant alleges that it duly performed, satisfied and discharged all

duties and obligations it may have had to Plaintiff and/or Plaintiff’s proposed classes and/or sub- {CLIENT FILES/5335/5/00267165.DOC) -3-

duties and obligations it may have had to Plaintiff and/or Plaintiff’s proposed classes and/or sub- {CLIENT FILES/5335/5/00267165.DOC) -3- classes and that the allegations in the Second Amended Complaint and each cause of action are

classes and that the allegations in the Second Amended Complaint and each cause of action are

| therefore barred in whole or in part by the provisions of Civil Code Sections 1473 through 1477.

TWELFTH AFFIRMATIVE DEFENSE

AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every

| purported cause of action, Defendant alleges that the alleged claims are barred in whole or in part

by accord and satisfaction and/or payment and release.

THIRTEENTH AFFIRMATIVE DEFENSE

AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every

- purported cause of action, Defendant alleges that Plaintiff and/or Plaintiff’s proposed classes

~and/or sub-classes would be unjustly enriched if they recovered any sums alleged in the Second

Amended Complaint.

FOURTEENTH AFFIRMATIVE DEFENSE

AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that Plaintiff and/or Plaintiff’s proposed classes and/or sub-classes are estopped by their own actions and conduct from seeking recovery on any of the causes of action of the Second Amended Complaint.

FIFTEENTH AFFIRMATIVE DEFENSE

AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that the alleged claims are barred by virtue of conduct constituting a waiver of each and every alleged claim.

SIXTEENTH AFFIRMATIVE DEFENSE

AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the first, third,

. fourth, fifth and sixth purported causes of action, Defendant alleges that Plaintiff and/or Plaintiff’s

. proposed classes and/or sub-classes were provided all required meal periods.

SEVENTEENTH AFFIRMATIVE DEFENSE

AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the first, third, fourth, fifth and sixth purported causes of action, Defendant alleges that to the extent meal periods

may be waived, Plaintiff and/or Plaintiff’s proposed classes and/or sub-classes waived all {CLIENT FILES/5335/5/00267165.D0C) -4,

may be waived, Plaintiff and/or Plaintiff’s proposed classes and/or sub-classes waived all {CLIENT FILES/5335/5/00267165.D0C) -4, waivable meal periods.

waivable meal periods.

EIGHTEENTH AFFIRMATIVE DEFENSE

AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the second, fourth, fifth and sixth purported causes of action, Defendant alleges that Plaintiff and/or Plaintiff’s proposed classes and/or sub-classes were provided all required paid rest breaks.

NINETEENTH AFFIRMATIVE DEFENSE

AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the second, - fourth, fifth and sixth purported causes of action, Defendant alleges that to the extent rest periods may be waived and/or combined Plaintiff and/or Plaintiff’s proposed classes and/or sub-classes waived and/or combined all such rest breaks.

TWENTIETH AFFIRMATIVE DEFENSE

AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to the fifth purported | cause of action, Defendant alleges that Plaintiff has failed to allege the existence of a “waiting time penalties class” of plaintiffs.

TWENTY-FIRST AFFIRMATIVE DEFENSE

AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the first, third, - fourth, fifth and sixth purported causes of action, Defendant alleges that if any unpaid work time occurred, which Defendant denies, such time was de minimis.

TWENTY-SECOND AFFIRMATIVE DEFENSE

AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the purported third purported cause of action, Defendant alleges Plaintiff and/or Plaintiff’s proposed | classes and/or sub-classes were not required to engage in any off-the-clock work when donning and doffing protective and/or sanitary gear.

TWENTY-THIRD AFFIRMATIVE DEFENSE

AS A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that Plaintiff and/or Plaintiff’s proposed classes

and/or sub-classes are barred by the doctrine of unclean hands.

M * {CLIENT FILES/5335/5/00267165.DOC)

TWENTY-NINTH AFFIRMATIVE DEFENSE

AS A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Seventh Cause of Action (erroneously captioned as the Eighth Cause of Action), Defendant alleges that Plaintiff failed to exhaust all administrative or contractual remedies including, but not limited to, those remedies provided by the employment policies governing Plaintiff’s employment and California Labor Code section 2699.3 et segq.

THIRTIETH AFFIRMATIVE DEFENSE

AS A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to the Seventh Cause of Action (erroneously captioned as the Eighth Cause of Action), Defendant alleges that Plaintiff cannot maintain the claim because he is not an aggrieved employee as he has not suffered any injury in fact as to each of the alleged violations for which the claim seeks statutory penalties.

THIRTY-FIRST AFFIRMATIVE DEFENSE

AS A THIRTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that if Defendant violated any provision of the California Labor Code, which Defendant denies, any such violation was not willful and the Court should exercise its discretion and fail to impose and/or minimize any penalties pursuant to Labor Code section 2699(e)(1).

THIRTY-SECOND AFFIRMATIVE DEFENSE

AS A THIRTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to each and every purported cause of action, Defendant alleges that Plaintiff may not recover civil penalties pursuant to multiple provisions of the Labor Code for the same alleged conduct.

THIRTY-THIRD AFFIRMATIVE DEFENSE

AS A THIRTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to each and every, purported cause of action, Defendant alleges that it has insufficient knowledge or information on which to form a belief as to whether it may havc additional, but as yet unstated, affifinative defenses available to it. Defendant, therefore, reserves the right to assert additional affirmative

defenses in the event discovery indicates such defenses are available.

" {CLIENT FILES/5335/5/00267165.D0C

PRAYER FOR RELIEF

WHEREFORE, Defendant prays for relief and judgment as follows: |

(D An order that‘the alleged claims not be certified as class or representative actions,

(2) Anorder of judgment in favor of Defendant and against Plaintiff and/or the proposed classes and/or sub-classes;

(3) Reasonable attorneys’ fees pursuant to Labor Code section 218.5 and any other statutory or common law basis for the recovery of attorneys’ fees to a prevailing party;

4) Costs of suit; and

(%) Such other and further relief as the Court deems just and proper.

Date: November 26, 2013 Respectfully submitted, SIMPSON, GARRITY, INNES & JACUZZI

PROFESSIONAL CORPORATION

By: /\U(¢ (A} RONALD F. GARRITY ROBERT J. WENBOURNE Attorneys for Defendant MERRILL’S PACKAGING, INC.

{CLIENT FILES/5335/5/00267165.DOC}) -8