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Phases Of Litigation

This page describes in detail each potential phase of litigation in your case. As you have now seen, you will receive an email update each time your case is moved into a new phase of litigation. You may use this document as a guide to better understanding each of these phases of litigation. Please keep in mind that your case may not necessarily undergo each of these phases. Please feel free to reach out if you have any additional inquiries.

Records Request Sent

In a majority of our cases, the first step is to obtain your payroll & personnel and other employment records from your former employer. Upon us sending this request to your former employer, the company has approximately 30 days to produce your payroll and personnel file. 

However, due to COVID, most employers are requesting and we are granting extensions of a couple more weeks. Even if non-COVID times, it is not uncommon for employers to take a few additional weeks to provide these records to us. In some cases, the company will entirely ignore our request because the penalty for doing so is only $750.00.

The payroll/personnel file generally includes your time records, wage statements and other pay records, sick leave pay records, the company’s written policies, any other agreements you sigend such as an arbitration agreement, meal period waiver agreement, or background check authorization form. All of these documents greatly assist in our ability to evaluate the case. 

We may have additional inquiries for you upon receipt and review of the payroll and personnel records. It generally takes us approximately 1-3 weeks to thoroughly review your records upon receipt.

PAGA Notice Sent

Typically, upon completing our review of your payroll & personnel record, we will draft a Private Attorneys General Act (“PAGA”) Notice. The PAGA Notice is an exhaustive, approx. 15 page letter that sets forth all the Labor Code violations (i.e. unpaid wages & penalties) being alleged and the theories underlying those violations. It is a requirement under California law that we mail this Notice certified to your former employer, and also file this Notice with the LWDA through their online portal, at least 65 days prior to filing the representative lawsuit. In the interim, while we are waiting on the 65-day expiration, we begin drafting the lawsuit complaint to file with the Court. 

Complaint Filed

All lawsuits in California must be filed with either a state court (also known as a Superior Court) or a federal court in California. State courts, generally speaking, are more liberal and friendly to employment-related actions than federal courts so we almost always prefer to file in state court. State courts are split up by jurisdiction (essentially by county). 

Once your case is filed, the next step is to serve the lawsuit complaint on the defendant(s) in the case. The defendants typically consist of your former employer, any affiliated/parent/subsidiary companies we deem proper defendants, and any managing agents we deem to be proper defendants (i.e. owners, supervisors, etc.). There are times where the company early on will provide us with information as to why one or some of the defendants named in the lawsuit should be dismissed (i.e. they were not proper defendants for some reason), which case we will dismiss them from the lawsuit or take other action to remove them from the suit. We typically use a process server to serve the lawsuit complaint on the defendants. 

Once the lawsuit is served, the company has 30 days to respond to the lawsuit, typically by filing what is called an “Answer.” The defendants can also file other types of responses to a lawsuit, such as a “demurrer” or “motion to strike” prior to filing their answer. If they file any of these, then the parties meet and confer to see if they can work out the reasons why the defendants feel there is a defect in the way in which the complaint is alleged, and if the parties cannot agree then they must file briefs and argue their points for the judge to decide. Typically, at some point, the defendants will need to file an Answer the complaint.

Generally, within the first 30-60 days of filing a lawsuit, the court also sets an initial status conference where both parties by and through their lawyers attend an initial hearing with the court to discuss the case. Prior to this hearing, the attorneys meet telephonically to discuss the case, the optics for litigation, any potential for early settlement or mediation of the case, among other issues. Under normal circumstances, this hearing is generally scheduled by the court within 1 to 3 months after filing the case. However, due to COVID-19, many courts have scheduled the initial status conference 4-6 months after the filing of the case. It truly varies from court to court.

While we await the first hearing with the court, we prepare/draft discovery to send to the defendants. Discovery is essentially a request for information and a request for a production of documents to the defendants. While they have the right to object to these questions, if they do not have good reason to object, then the defendants must respond under oath by either providing the information and/or documentation. For example, we typically request the contact information for all the current and previous employees of the company during the period the lawsuit covers so that we can contact them as witnesses in the lawsuit. If the defendants do not provide this information, then we must file a “motion to compel” with the court, which the defendants can oppose, and the judge will rule on what discovery needs to be produced.

With class and PAGA actions, many courts in California have a “stay” on the case until the initial status conference. This means that the parties are not permitted to engage in discovery until the parties hold the initial status conference with the court. Again, this varies court by court.

Case Stayed

As mentioned, generally, within the first 30-60 days of filing a lawsuit, the court also sets an initial status conference where both parties by and through their lawyers attend an initial hearing with the court to discuss the case. Under normal circumstances, this hearing is generally scheduled by the court within 1 to 3 months after filing the case. However, due to COVID-19, many courts have scheduled the initial status conference 4-6 months after the filing of the case. It truly varies from court to court.

With class and PAGA actions (which are typically deemed to be “complex” cases that are heard in “complex court”), many complex courts in California have a “stay” on the case until the initial status conference. This means that the parties are not permitted to engage in discovery or any substantive law an motion until after the initial status conference with the court. Again, this varies court by court.

Pleadings 

The pleadings phase of a case occurs after the complaint is filed and generally prior to discovery beginning. Upon a complaint being filed and served, all of the defendants must respond to the lawsuit complaint within thirty (30) days of being served by filing a “responsive pleading.” Typically, defendants will file an “Answer” to the lawsuit. The Answer will assert all of their defenses to the lawsuit that they intend to assert during litigation and ultimately in a trial. 

However, there are multiple other types of responsive pleadings that a defendant can file rather than an Answer or prior to filing an Answer, such as a demurrer, a motion to quash, a cross-complaint, a removal to federal court, among others. These responsive pleadings generally relate to the defendant asserting a procedural deficiency with plaintiff’s lawsuit complaint, a request to change the jurisdictions from state to federal court based on certain factors, or a desire to include other parties into the lawsuit. When the defendant files a responsive pleading other than an Answer, it can and generally does result in law & motion whereby the parties each draft briefs on the issues advocating for their position, argue their points in court and ultimately the judge will render a decision. There are times where the parties will agree to one a change requested by one of the parties through a “stipulation.”

Discovery

Discovery is essentially a request for information and a request for a production of documents to the defendants. While they have the right to object to these questions, if they do not have good reason to object, then the defendants must respond under oath by either providing the information and/or documentation. For example, we typically request the contact information for all the current and previous employees of the company during the period the lawsuit covers so that we can contact them as witnesses in the lawsuit. If the defendants do not provide this information, then we must file a “motion to compel” with the court, which the defendants can oppose, and the judge will rule on what discovery needs to be produced.

While the discovery that we obtain varies from case to case because each case has a unique set of employees, Labor Code or other violations and issues, there are some pieces of information/documentation that we almost always obtain, including: the relevant written policies of the employer, the wage statements/payroll information and time keeping record for you and the other current/former employees during the relevant period, the contact information for all the relevant current/former employees, the total amount of current/former employees and how many workweeks/pay periods they wore during the relevant period, and any relevant agreements signed by you and the current/former employees, such as arbitration agreements, meal break waiver agreements, etc.

Discovery also consists of “depositions.” A deposition as a live interview of an individual who is typically a person most knowledgeable on a relevant topic to the case. The interview can last anywhere from 2-8 hours, depending on the person being deposed and the topics involved. We are permitted to take the deposition of the “person most knowledgeable” on certain issues in the case such as pay policies, etc. You should keep in mind that as the plaintiff in the lawsuit, the defendants also have a right to depose you as well. This is generally a one time deposition for a few hours. During COVID-19, depositions are being held virtually from a home computer. If you do not have access to a home computer, our office can mail you a laptop for use during the deposition. We typically schedule at least one or two calls with you prior to your deposition in order to prepare you for same.

Mediation

Mediation occurs when the parties would like to attempt to resolve the case through a settlement. The parties agree to hire a third party mediator, typically a retired judge or former attorney highly experienced in the area of law, and schedule a date where the parties meet with the mediator for a full day and attempt to settle the case. The parties generally split the cost of the mediation, which can be anywhere from a $5,000 to $15,000 cost to each party. Crosner Legal will advance the costs of your mediation, and even if the case never resolves (which is highly unlikely), you will not owe these costs to Crosner Legal. 

There is a lot of work that goes into preparing for the mediation. The defendants must produce hundreds, if not thousands, of documents and data points to us, which we then review and evaluate, and retain an expert to analyze in most cases. The information/documentation request and expect the defendants to produce is similar to the information and documentation described in the discovery section above. The parties also typically draft separate mediation briefs outlining their arguments to provide to the third party mediator prior to mediation. We will be contacting you within 1-4 weeks prior to the mediation to discuss the mediation process with you in more detail and to obtain your input for the mediation brief.

Mediations were traditionally held in person, but with the COVID-19 most are now being held virtually. They typically last all day (8-16 hours). You do not need to be present at the mediation unless we tell you otherwise, but you have the option to if you’d like. We do ask that you be available by phone for the entire day of mediation.

Case Settled (Class/PAGA)

Good news – if you have received a notification for this phase of litigation, this means that your class action/PAGA case has settled in principal! There are several additional steps following settlement of your case.

Typically, the first step is that the parties (including you) will execute a Memorandum of Understanding (“MOU”). The MOU is like a term sheet that reflects the material terms to the Settlement. The next step following the signing of the MOU, is that the attorneys for both parties will draft the “long form settlement agreement.” The long form settlement agreement is a very exhaustive settlement agreement between the parties with many terms and conditions. The process of drafting and agreeing to all the terms and conditions generally takes between 30-60 days, at which time all parties (including you) will sign it. 

Thereafter, we schedule a hearing for preliminary approval of the settlement with the court, draft an extensive brief for the court explaining why the settlement is a fair and reasonable settlement. Once approved by the court, then notices of the settlement are mailed to all class members (current/former employees including you). Each class member typically has between 30-45 days to decide whether they want to accept their portion of the settlement or, in the alternative, opt-out of the settlement and retain their rights to bring their own lawsuit for their individual damages. After the 45 days, we go back to court a final time for final approval. Once the court grants final approval, payment to everyone including you for your prospective class/PAGA representative award and portion of the settlement, to all the class members, and to us for attorneys’ fees and costs, will be within approximately 30-60 days in most cases.


Individual Settlement Negotiations

Individual settlement negotiations means that our law firm is attempting to negotiate you a settlement, but not any other employees. Put another way, to settle individually means that no other employee, except you, will be compensated for the alleged Labor Code violations. If you have a wrongful termination/discrimination/retaliation case, then this aspect of your case will likely be settled individually because these claims do not apply to others. 

Notably, there are times where it may make sense for us to negotiate you an individual settlement even if your case is filed as a class or representative PAGA action. For example, if there are other previously filed class/representative actions with the same or similar claims, then we may not be able to move forward with your case on a class/representative basis because it would be duplicative of another case. Another example would be if we find out that there are only a very small amount of employees in California working for the company such that pursuing a class/representative action isn’t proper or sensical.

Case Settled (Individual)

Good news – if you have received a notification for this phase of litigation, this means that your case has settled individually! 

There are generally a few additional steps following settlement of your case. First, the parties will draft and agree to the terms and conditions of a settlement agreement, which generally takes 30 days or less, at which time all parties (including you) will execute the settlement agreement. 

Preliminary Approval

When a class action is settled, the parties agree to the settlement terms by executing a settlement agreement. Then, the settlement agreement must be approved by the court. The judge in the case must agree that the terms of the settlement are fair, reasonable and adequate to the class members. Plaintiff’s attorneys (Crosner Legal) drafts a motion for preliminary approval and supporting papers, explaining to the judge in detail why the settlement is fair, reasonable and adequate. The supporting documents include a declaration from you, the class representative, in support of the settlement, and in support of the class representative enhancement award being requested on your behalf. 

Preliminary approval is the first step in the settlement approval process. After filing our motion, there will be a hearing date with the court to decide if the settlement is approved. Typically, the court will either approve the settlement on the date of the hearing, or request some revisions/clarifications to the settlement and reset the hearing date for a weeks from then. 

When the court preliminarily approves the settlement, then shortly thereafter notices of the settlement will be mailed by the third-party settlement administrator to all of the class members informing them of the settlement. The class members will be provided with 45 days to opt-out of the settlement if they so choose. Once that 45-day period has elapsed, we must go back to court for final approval and provide the court with the number of class members who decided to opt-out, as well as other information. 

Final Approval

As explained above, when the court preliminarily approves the settlement, then shortly thereafter notices of the settlement will be mailed by the third-party settlement administrator to all of the class members informing them of the settlement. The class members will be provided with 45 days to opt-out of the settlement if they so choose. Once that 45-day period has elapsed, we must go back to court for final approval and provide the court with the number of class members who decided to opt-out, as well as other information. If the court grants final approval at that hearing, then the settlement distribution (payment to you, the class members, and our attorneys’ fees and costs) is generally within 30-60 days after final approval is granted, unless the settlement extended payment due to financial hardship of the defendant.

PAGA Approval

Similar to a class action, settlement of a PAGA only lawsuit requires court approval. Plaintiff’s attorneys (Crosner Legal) drafts a motion for PAGA approval and supporting papers, explaining to the judge in detail why the settlement is fair, reasonable and adequate. The supporting documents include a declaration from you, the PAGA representative, in support of the settlement, and in support of the PAGA representative enhancement award being requested on your behalf. 

However, in a PAGA only lawsuit we are not required to obtain a two-step approval (i.e. preliminary and final approval). Rather, the court will set one hearing for PAGA approval, and upon it being granted, the settlement distribution (payment to you, the class members, and our attorneys’ fees and costs) is generally within 30-45 days after PAGA approval is granted. The only notice sent to the employees is a letter explaining the settlement with their settlement check enclosed.

Class Certification

In a class action lawsuit, the court must “certify” the class before it can proceed as a class action. 

Certification means that the court has determined that a class action is the best option to manage the multiple claims. In order for a class action to proceed to trial, the class must be certified first.

This process does not constitute that the judge believes that the defendant is liable for violations or that the jury will find the defendant so. Instead, it is a matter of determining whether there are enough similarities in a number of cases that justify joining them together.

Practically speaking, a majority of class action lawsuits (over 90%) settle prior to class certification. In fact, many courts require the parties to attempt mediation before class certification. A primary reason for this is that the cost of litigating the case through class certification is very expensive for both parties, particularly the defendants, which provides them incentive to attempt to settle the case before then.

Arbitration

Arbitration is a private process where disputing parties agree that a neutral third party experienced in the area of law can make a decision about the dispute after receiving evidence and hearing arguments. Arbitration is different from mediation because the neutral arbitrator has the authority to make a decision about the dispute, similar to a judge and/or jury in a civil lawsuit.

The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. After the hearing, the arbitrator issues an award. 

It is very common that employees are required to sign arbitration agreements by their employers as a condition of their employment or continued employment. The primary reason employers require arbitration agreements to be signed is because employees generally cannot file a class action lawsuit when they have signed an arbitration agreement. If you signed an arbitration agreement, you can only bring these claims in arbitration and only on an individual basis for your individual unpaid wages. 

However, in California, even if an employee signed an arbitration agreement, he or she can still bring a PAGA representative lawsuit on behalf of other employees. In fact, you can have an on-going arbitration for your individual claims as well as a PAGA representative action simultaneously in court for the representative claims. 

For more detailed updates, please contact James Reid with our Law Firm at the below information:

  • To Text or Call: (323) 686-2096  
  • To Email: james@crosnerlegal.com

Lastly, it is imperative that you keep us informed if you change your contact information, including either phone number, email address or residence address. You will receive a text message and email from us every two 60-90 days reminding you to provide us with any changes to this information. Please fill out the form in the text and/or email we send if you change your contact information. In the alternative, you may text or call at the above contact information to provide your updated contact information.

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