IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,
IN AND FOR THE COUNTY OF SAN MATEO
PAUL DURAN, on behalf of himself and all ) Case No. 19CIV02677
“aggrieved employees” pursuant to Labor Code )
- 2698 et seq., )
)
Plaintiff, )
) MOTION FOR EXCLUSION
- ) FROM CLASS ACTION ) SETTLEMENT
OTO DEVELOPMENT, LLC, a Delaware )
Limited Liability Company )
)
Defendant. )
TO THE HONOURABLE COURT,
Plaintiff Richardvon R. Pey files this Motion for Exclusion from Class Action Settlement and respectfully asks the Court to modify the class settlement for the purpose of deleting the Plaintiff’s name. In support of this Motion, Plaintiff Pey states as follows:
I am one of the the Plaintiffs herein well versed with the facts of this case. I was automatically enjoined as a Plaintiff in the class action lawsuit that resulted into this settlement. I am aware that the deadline to opt out of the class action lawsuit was November 2020. However, I would like to opt out at this time. This court has the discretion to allow this Motion under Rule 60(b) of the Federal Rules of Civil Procedure. It provides as follows:
“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect, … or (6) any other reason justifying relief from the operation of the judgment.”
I would like to be excluded from this class settlement because I mistakenly thought I would be automatically opted out. I initially assumed that my wage claim would exclude me from this class action. I wrote to (Please specify the name of the lawyer), the Defendant’s Attorney after receiving the notice of class settlement informing him of my intention to opt out of the class settlement. He delayed me until a settlement was reached. In support of this Motion, Richardvon cites Joanne Augst-Johnson et al., v Morgan Stanley & Co. Inc., where the court stated as follows:
“Nonetheless, since any opt-out notice by Grubman would have been untimely here through no fault of hers, Grubman tried to contact class counsel immediately after she received the class notice, class counsel did not provide the advice she sought, there is no showing that Grubman acted in bad faith or with intent to delay for tactical reasons, and there is no showing that defendant is prejudiced by the tardiness of the opt-out in a case where over 99% of the class members appear to have received the class notice, the relief Grubman seeks is warranted.”
Prayer
WHEREFORE, Plaintiff Pey requests that this Motion be granted and the Court exclude him from the Class Settlement in accordance with the above-requested relief.
Respectfully Submitted
(Signature)
Richardvon R. Pey
(Address)
(Phone)
(Email)
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:
(Name of Defendant’s Attorney), Attorney at Law
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