Jose Guadalupe Rodriguez-Puga vs. San Aliso, Inc.

Opposition

Cal. Super. - 4th Dist.August 18, 2015

© 0 NN O N Un Br W N = NN N N N N N N N ND mm o m e m e m p m e m em e m e m c o JN O N Wn BA W N = O O 0 0 N S N N B A W D = Oo Jack D. Josephson (201488) LAW OFFICES OF JACK D. JOSEPHSON, APC 3580 Wilshire Boulevard, Suite 1260 Los Angeles, California 90010 Telephone: (213) 738-5225 Attorneys for Plaintiffs, JOSE GUADALUPE RODRIGUEZ-PUGA, an individual, BRYAN MENDEZ- SOTO, an individual, DAVID LANDERO, an individual, SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER JOSE GUADALUPE RODRIGUEZ-) CASE NO. 30-2015-00805157 PUGA, an individual, BRYAN ) MENDEZ-SOTO, an individual, ) Case Assigned for All Purposes to: DAVID LANDERO, an individual, ,) Hon. Walter Schwarm, Dept. “C19” ) Plaintiffs, UNLIMITED JURISDICTION Vv. ) PLAINTIFFS’ OPPOSITION TO MOTION ) TO STRIKE PORTIONS OF THE FIRST SAN ALISO, INC.,aNevada , ) AMENDED COMPLAINT Corporation, d.b.a. PANINI CAFE, Corporation, SANTA JAMBOREE INVESTMENTS, INC. a Nevada Corporation, and DOES 1 through 100, inclusive, [Decl. of Josephson & Exhibits filed concurrently herewith] Date: April 12, 2016 Time: 1:30 pm. Dept.: “C19 Defendants. Case filed: Aug. 18, 2015 Trial date: None N r ” N r ” N r ” N r ” N r ” N r ” N r ” N r ” N r ” N r ” N r ” N e ” N e ” TO THE HONORABLE COURT, TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: COME NOW Plaintiffs JOSE GUADALUPE RODRIGUEZ-PUGA, an individual, BRYAN MENDEZ-SOTO, an individual, and DAVID LANDERO, an individual, (hereafter collectively “Plaintiffs”), and files this Opposition to the Defendant SAN ALISO, INC., a Nevada Corporation, d.b.a. PANINI CAFE, Corporation, and Defendant SANTA JAMBOREE INVESTMENTS, INC., a Nevada 1 OPPOSITION TO MOTION TO STRIKE © 0 NN O N Un Br W N = NN N N N N N N N ND mm o m e m e m p m e m em e m e m c o JN O N Wn BA W N = O O 0 0 N S N N B A W D = Oo Corporation, (hereafter collectively “Defendants™) Motion to Strike Portions of the Cross-Complaint. IL. PLAINTIFFS ATTEMPTED TO FILE A SECOND AMENDED COMPLAINT TO ADDRESS THIS MOTION TO STRIKE, HOWEVER, THAT WAS DENIED AND PLAINTIFFS NOW SEEK LEAVE TO AMEND On August 18, 2015, Plaintiffs JOSE GUADALUPE RODRIGUEZ-PUGA, an individual, BRYAN MENDEZ-SOTO, an individual, and DAVID LANDERO, an individual, (hereafter collectively “Plaintiffs”) filed this wage and hour action against Defendant SAN ALISO, INC., a Nevada Corporation, d.b.a. PANINI CAFE, and Defendant SANTA JAMBOREE INVESTMENTS, INC., a Nevada Corporation (hereafter collectively “Defendants”). This Action consists of unpaid wage claims, failure to provide meal and rest breaks, failure to pay overtime wages, failure to reimburse uniform expenses, Labor Code waiting time penalties, and failure to provide accurate itemized wage statements. On December 21, 2015 the Plaintiffs filed a First Amended Complaint (hereafter “FAC”). The FAC became the operative pleading as a matter of law. After the FAC was filed, and in January 2016, three (3) additional former employees of Defendants approached the plaintiff counsel and asked to be included in the pending Action. The new potential Plaintiffs were employed by the same Defendants and worked at the same “Panini Café” locations as the current Plaintiffs in this Action. The new potential Plaintiffs also worked during the same period of time, and worked under similar working conditions as the original Plaintiffs. On April 12, 2016 (the same date as this Motion to Strike Hearing) the Plaintiffs seek leave to amend to add the new Plaintiffs to a Second Amended Complaint. On February 5, 2016, the Plaintiff counsel wrote Defendant to discuss this pending Motion to Strike. The Plaintiff wrote that it was willing to amend the First OPPOSITION TO MOTION TO STRIKE 0 9 S y n n B R O W N o N N N R N N R N e s = ee ee e m ee 00 ~ ~ OO " Wn B A W N = DO N D NN y n s w NN = O Amended Complaint and to remove the prayer for civil penalties as to the sixth cause of action. (See Exhibit “A” attached to Decl. of Josephson) On February 8, 2016, a Case Management Conference was called in the above- referenced matter. At the CMC, the Plaintiff informed the Court that it anticipated filing a Second Amended Complaint to address the pending motion to strike which would then moot the motion. The Defendant’s Motion to Strike does not address any other issue but a request to strike the prayer for civil penalties. The Court, thereafter, informed Plaintiffs to file a Second Amended Complaint forthwith. Unfortunately, the Court’s recommendation at the CMC was not reduced to an order of the Court, or recorded in the Court’s minute order. (See Exhibit “B” attached to Decl. of Josephson) On February 15, 2016, the Court rejected for filing the Plaintiff’s Second Amended Complaint. The Court’s rejection notice indicated a reason for rejection as a failure to obtain leave of Court to file a Second Amended Complaint. Again, at the February 8, 2016 CMC hearing the Plaintiffs erroneously believed the Court had ordered them to file a Second Amended Complaint. (See Exhibit “C” attached to Decl. of Josephson) The Second Amended Complaint includes the omitting of the prayer for relief for civil penalties as well as the addition of three (3) new party Plaintiffs as indicated hereinabove. Leave to file this Second Amended Complaint is to be heard on April 12, 2016 — the same day as this motion to strike. Therefore, in light of the foregoing, the Plaintiffs do not oppose the Defendant’s Motion to Strike the prayer as to the Sixth Cause of Action for civil penalties, however it is mooted by the proposed Second Amended Complaint discuss hereinabove. DATED: 3/afiv | LAW OFFICES OF JACK D. JOSEPHSON, APC Tae D. Jo#phson, Attorneys for Plaintitfs OPPOSITION TO MOTION TO STRIKE Oo 0 ~~ O N n n B W NY O R OR D N O D N N R N e m em m e m e m em em ee 0 3 ON L A W R N — OO WY 0 N N N A W NR = O PROOF OF SERVICE Iam Sp oye in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 3580 ilshire Boulevard, Suite 1260, Los Angeles, California 90010. On the below date, I served a true copies of the foregoing documents described as PLAINTIFFS’ OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT on all interested parties in this action directed as follows: Attorney for Defendants: James J. McDonald, Jr. Esq. Boris Sorsher, Esq. FISHER & PHILLIPS, LLP 2050 Main Street, Suite 1000 Irvine, California 92614 / /(BY MAIL) : I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. / 7 (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to addressee. /X 7(BY OVERNIGHT MAIL) I am readily familiar with the firm’s practice ~ of collection and processing for overnight ds VEY. Under such practice, 1 caused the aforementioned document(s) to be delivered to an overnight courier service, carrier fees paid and deposited in an overnight delivery drop-box and/or delivered to an overnight carrier. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed on March 29, 2016 at Los Angeles, an ; Declarant, Karen Zea a tm ——— PROOF OF SERVICE