Motion For Leave To File First Amended Complaint

Motion

Cal. Super. - 6th Dist.September 13, 2017

N O 0 N N N n n B R A W N N O N N N N N N N N e m m m m m e t e t m d e t p e t e e t e e 0 N A L n Rl s W N = O N D N N R W = O o Larry W. Lee, Esq. SBN 228175 DIVERSITY LAW GROUP 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 Edward W. Choi, Esq. SBN 211334 WILLIAM L. MARDER, ESQ. (SBN 170131) Paul M. Yi, Esq. SBN 207867 Polaris Law Group LLP LAW OFFICES OF CHOI & ASSOCIATES 501 San Benito Street, Suite 200 515 S. Figueroa St., Suite 1250 Hollister, CA 95023 Los Angeles, CA 90071 Tel: (831) 531-4214 Telephone: (213) 381-1515 Fax: (831) 634-0333 Facsimile: (213) 465-4885 Attorneys for PlaintiffJESUS RODRIGUEZ and the Class SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY JESUS RODRIGUEZ,as an individual and on) Case No.: 17CV001027 behalfall others similarly situated, ) ) PLAINTIFF'S MOTION FOR LEAVE TO ) FILE FIRST AMENDED COMPLAINT; Plaintiff, ) MEMORANDUM OF POINTS AND ) AUTHORITIES \'2 ) ) [DECLARATION OF EDWARD W. CHOI IN SUPPORT THEREOF; [PROPOSED] CENTRAL COAST COOLING,LLC, A ) ORDER; [PROPOSED] FIRST AMENDED Limited Liability Company, and DOES1 ) COMPLAINT LODGED through 100, inclusive, ) CONCURRENTLY HEREWITH] ) ) Defendants. ) Date: February 21, 2018 ) Time: 2:00 p.m. ) Dept. 1 1" 1 " PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT N O 0 N N N n n B A WL W - 0 N N n n RA R W N N = O D O N N N N R W N = O o TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICEthat, on February 21, 2018 at 2:00 p.m., or as soon thereafter as the matter may be heard in Department 1 ofthe above-referenced court, the Honorable Lydia M. Villarreal, presiding, Plaintiff JESUS RODRIGUEZ (“Plaintiff”) will, and hereby does, move for an Order granting Plaintiff leave to file his First Amended Complaint. This Motion is made on the groundsthat Plaintiff seeks leave to amend to seek additional violations of Labor Code §§ 201-203, 510, 558, 1194, 1197, 1197.1. Specifically, during the discovery process, it was revealed that Defendant had a company- wide policy of requiring employees to clock in or out within 7 minutes oftheir scheduled work time and rounded down the time worked by its employees to the nearest 15 minutes. In the event an employee clocked in more than 7 minutes before or after their scheduled work time, Defendant had a policy of deducting 15 minutes for such clock entry. Therefore, Plaintiff alleges that the “rounding” policy was not neutral and violated Labor Code §§510, 558, 1194, 1197, 1197.1. In addition, during the discovery process, it was discovered that Defendant had a policy and practice of failing to pay all earned wagesto its seasonal employees on the last date of employment, but rather, paid such wages days/weeks later. As such, Plaintiff allege that such practice violates Labor Code §§ 201 & 203, and thus seek leave to amend to bring such claims on said theory. This Motion for Leave to Amend will be based upon this Notice, the accompanying Memorandum of Points and Authorities, the Declaration of Edward W. Choi, and on all pleadings and papers on file in this action, and upon such oral and documentary evidence as may be introduced at the time of the hearing of this Application. DATED: January 19, 2018 LAW OFFICES QF CHOI & ASSOCIATES I~" Edward W. Choi, Esq. Attorney for Plaintiff and the Class 2 PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT N O 0 X N N N n n A W N - - N O N N N N N N N N m m r m oe m e m h m m m e k e m e m p e N R N N A A n N B A W N = O N D N N N N R A W N - = O o MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION AND STATEMENT OF FACTS Defendant CENTRAL COAST COOLING, LLC (“Defendant”) is a produce cooling and delivery company. On March 24, 2017, Plaintiff JESUS RODRIGUEZ (“Plaintiff”) filed the instant action against Defendant for penalties pursuant to Labor Code Sections 201-203, 510, 558, 1194, 1197, and 1197, 226, 226.7, Business and Professions Code Sections 17200, et seq., and Private Attorney General Act. (Declaration of Edward W. Choi (“Choi Decl.” §2). On or about June 21, 2017, Defendant filed its Answer to the Complaint. (Choi Decl. 3) Plaintiff propounded written discovery in July 2017 seeking putative class contact information and documents. On August 29, 2017, Defendant provided its responses, objections and produced some of the documents requested by Plaintiff. Plaintiff and Defendant met and conferred regarding the Defendant’s responses and objections and following that process, Defendant produced additional documents in late November and early December 2017. On December 14, 2017, counsel for Plaintiff took the deposition of Defendants Person Most Knowledgeable. During the deposition,it was revealed that Defendant had a company- wide policy of requiring employees not to clock in or out oftheir shifts within 7 minutes of their scheduled work time and rounded down the time worked by its employees to the nearest 15 minutes. In the event an employee clocked in more than 7 minutes before or after their scheduled work time, DEFENDANTS had a policy of deducting 15 minutes for such clock entry, in violation of California Labor Code §§ 510, 558, 1194, 1197, 1197.1 and IWC Wage Orders. (Choi Decl. 94) Similarly, during the deposition, it was disclosed that while Defendant employed a significant number of employees as seasonal employees, and thus their employment ends at the end of each particular season, such employees’ earned wages were not immediately paid to them on the last day oftheir employment as required by Labor Code § 201. Rather, as testified to by Defendant, such final wages were always paid days/weekslater. (Choi Decl. 5) Plaintiff now seeks leave to file an amended complaint to add these two recently discovered allegations/theories. Although not required by the Code of Civil Procedure, on 3 PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT N O R X N N n n A W N N N N N N N N N N m m e m e m e m e m e m m a m e e e 0 0 N N L n B R W N = O D N N Y R W N D - = O O December 27, 2017, Plaintiff met and conferred with Defendant’s counsel and requested that Defendantstipulate to Plaintiff filing the proposed First Amended Complaint. (Choi Decl. 6) As of the date offiling this Motion, Defendant has not agreed to stipulate to Plaintiffs seeking leaveto file his First Amended Complaint. (/d.) The proposed First Amended Complaint, is also attached as Exhibit “A” to the Choi Decl. (Choi Decl. §7). IL. LEGAL ARGUMENT A. LEAVE TO AMEND SHOULD BE LIBERALLY GRANTED Plaintiff’s proposed First Amended Complaint is authorized under Code of Civil Procedure (“CCP”) sections 473 and 576. CCP section 473(a)(1) provides: The court may, in furtherance ofjustice, and on any terms as may be proper, allow a party to amend any pleading . . . The court may likewise,in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendmentto any pleading .. in other particulars. . . CCP section 576 provides: Any judge, at any time before or after the commencementoftrial, in the furtherance ofjustice, and upon such terms as may be proper, may allow the amendment of any pleading . . . There is a strong judicial policy that favors granting a party leave to amend a complaint. Courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage ofthe proceedings, up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Prejudice exists where the amendment would require delaying the trial, resulting in loss ofcritical evidence or added costs of preparation, increased burden of discovery, etc. (P & D Consultants, Inc. v. City ofCarlsbad (2010) 190 Cal.App.4th 1332, 1345.) If the delay in seeking the amendment has not misled or prejudiced the otherside,the liberal policy of allowing amendments prevails, even if sought as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565; see also Sachs v. City ofOceanside (1984) 151 Cal. App. 3d 315, 319 (delay of four years between time of filing complaint and motion to amend complaint not grounds for denial of motion where delay 4 PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT N O 0 N N N A W N - N N N N N N N N N m t m t e t m m m d e d p d p e d m d p e e 0 N O N n n l A W N = O N O N N N RA R W N D -- = O O was due to opposing party’s failure to comply with discovery requests and a lack of prejudice to opposing party)). It is without dispute that Courts should be liberal in allowing parties to amend its complaint. See, e.g., Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134. Vaccaro v. Kaiman (1998) 63 Cal. App. 4™ 761, 768-69. A Court's discretion should be exercised liberally to permit amendments ofthe pleadings. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939; Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 596. The policy of favoring amendmentis so strong thatit is a rare case in which denial of leave to amend can be justified. Cal. Cas. Gen. Ins. Co. v. Superior Court (1985) 173 Cal. App. 3d 274, 278; Morgan v. Sup. Ct. (1972) 172 Cal. App. 2d 527, 530 “Trial courts are vested with the discretion to allow amendments to pleadings in the furtherance ofjustice . . that trial courts are to liberally permit such amendments.” Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486. If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party,it is error to refuse permission to amend. (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530). Furthermore, “it is error to refuse permission to amend and where the refusal also results in a party being deprived ofthe right to assert a meritorious cause of action or a meritorious defense,it is not only error but an abuse of discretion.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) § 6:639, p. 6-161.) In the present case, Plaintiff, through the discovery process has discovered that there are additional facts and theories upon which Defendant is liable for the Labor Code violations previously pled. Immediately upon the discovery of such violations, Plaintiff has promptly sought Defendant’s stipulation to file the First Amended Complaint, which Defendant refused. Thus, and immediately following Defendant’s refusal of the proposed stipulation, Plaintiffnow seeks leave from this Court to file the proposed First Amended Complaint. There is no delay to Defendant, and Defendant will not be able to show any. For example, this case has not even reached the class certification stage, nor has the trial date been set in this case. To the extent Defendant desires to re-depose Plaintiff on the newly added allegations, Plaintiff is agreeable to such a deposition. Thus, there is no reason to deny this 5 PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT O © 0 0 ~ 3 O & O Wn » H r W N N o N o N o N o N o N D N o N o [\ &] p t p - P - - - P o - p - P - P - 0 ~ ~ A N W w E N [U S J N S } - o \ O 0 ~ A N w n E E w N o = o O amendment. Moreover, granting leave to amend to add the requested claimsis in the furtherance of justice and judicial economy. In a case in which a plaintiff sought to amend a complaintto add causes of action, the Court in Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047 explained: “The trial court has discretion to allow amendments to the pleadings “in the furtherance ofjustice.” (Code Civ. Proc., § 473.) This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939 [101 CalRptr. 568, 496 P.2d 480].)” (Emphasis added.) The Court further noted, “even ifthe proposed legal theory is a novel one, “the preferable practice would be to permit the amendmentand allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.”(Kittredge Sports Co., supra 213 Cal.App.3d at 1048, quoting California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281).) Based on the foregoing,it is requested that Plaintiff's Motion be granted. B. PLAINTIFF HAS DILIGENTLY MOVED TO AMEND THE COMPLAINT As stated more fully above, Plaintiff has conducted written discovery on a timely basis and obtained the deposition of Defendant’s PMKafter an extensive meet and confer on the written discovery. The PMK deposition was conducted in mid-December 2017 and Plaintiff is promptly moving to amend the Complaint after the deposition. Thus, Plaintiff has not delayed in moving to amend the Complaint. C. THE PROPOSED CHANGES In accordance with California Rules of Court Rule 3.1324(a)(2), (3), the following changes are made between the Complaint and the proposed First Amended Complaint:' Page 2, line 1, adding “First Amended” Page 7, line 5, deleting “201-203; Page 7, lines 20-25, adding entire paragraphs of factual allegations; ! The changeslisted are substantive changes; Changes in certain grammar or formatting are notlisted. 6 PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT N O 0 N N n n l w - 0 N N U n A W N = O N O N N Y N RA E W N - = O o Page 11, lines 6-21, adding an additional cause of action, entire paragraphs of factual allegations; Page 12, lines 11-12, adding entire paragraph for prayer for relief IIL. CONCLUSION For the reasonsset forth above, Plaintiff respectfully requests leave to amend the complaint, and for an order of this Court that the proposed First Amended Complaint (separately lodged) be deemed served and filed as of the date of the granting of this Motion. DATED: January 19, 2018 LAW OFFICES OF CHOI & ASSOCIATES Edward W. Choi, Esq. Attorney for Plaintiffs and Aggrieved Employees 7 PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT PROOF OF SERVICE I am employed in the County of Los Angeles; | am over the age of 18 years and not a party to the within action; my business address is 515 S. Figueroa St., Suite 1250, Los Angeles, California 90071. On January 19, 2018, I served the foregoing document(s) described as: PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT,on the interested parties in this action by placing a true copy thereof, in a sealed envelope(s) addressed as follows: Anne Frassetto Olsen, Esq. William L. Marder, Esq. Law Offices of Anne Fassetto Olsen Polaris Law Group LLP 307 Main St., Suite 310 501 San Benito Street, Suite 200 Salinas, CA 93901 Hollister, CA 95023 Larry W. Lee, Esq. Diversity Law Group, APC 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 BY MAIL As follows: Iam “readily familiar” with the practice of Choi & Associates, Attorneys at Law for collection and processing of correspondence for mailing with the United States Postal Service and that correspondence placed in the outgoing mail tray in my office for collection would be deposited in the United States Mail that same day in the ordinary course of business. BY PERSONAL SERVICE I caused such envelope to be delivered by hand to the offices ofthe addressee. X BY ELECTRONIC SERVICE I caused such document to be uploaded to One Legal to be served on the offices ofthe addressees. ___X___ (State) I declare under penalty of perjury that the foregoing is true and correct. (Federal) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a memberof the bar ofthis Court at whose direction the service was made. Executed on January 19, 2018, at Los Angeles, California. Cina Kim PROOF OF SERVICE