Jeffrey Cristobal vs. Applied Medical Resources Corporation

Motion for Leave to Amend

Cal. Super. - 4th Dist.December 6, 2016

© 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o AEGISLAW FIRM, PC SAMUEL A. WONG, StateBar No. 217104 KASHIF HAQUE, State Bar No. 218672 MARTA MANUS, State Bar No. 260132 JESSICA L. CAMPBELL, State Bar No. 280626 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff, JEFFREY CRISTOBAL, individually and on behalf of all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JEFFREY CRISTOBAL, individually and [Case No. 30-2016-0089-1275-CU-OE-CXC on behalf of all others similarly situated, Plaintiff Assigned for all purposes to Hon. Thierry Patrick ' Colaw, Dept. CX105 VS. APPLIED MEDICAL RESOURCES PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND [CONCURRENTLY FILED WITH DECLARATION OF MARTA MANUSIN Defendants. SUPPORT THEREOF; (PROPOSED) ORDER] D ate: December 29, 2017 Time: 10:30am Location: CX105 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDEDCOMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o PLEASE TAKE NOTICE that on December 29, 2017 at 10:30 a.m., or as soon thereafter as the matter may be heard, in Department CX 105 of the Superior Court, County of Orange, located at 751 W. Santa Ana Blvd., Santa Ana, CA 92701, Plaintiff ) effrey Cristobal will and hereby does move this Court for an order granting Plaintiff leave to file a Second Amended Complaint. A copy of the [Proposed] Second A mended Complaint is attached as Exhibit A (clean with changes accepted) and Exhibit B (redline copy showing proposed revisions) to the Declaration of Marta M anus in Support of this Motion (“Manus Decl.”). Plaintiff also requests an order that the attached [Proposed] Second Amended Complaint (Ex. A to Manus Decl.) be deemed to be filed and served as of the date the Motion is granted. This Motion is made pursuant to California Code of Civil Procedure Section 473(a)(1) and is based on this Notice of Motion, the M emorandum of Points and A uthorities, the Declaration of Marta Manus filed herewith, the accompanying [Proposed] Second A mended Complaint, the case file in this matter, and any such additional evidence and argument, written or oral, as may be presented to the Court at or before the hearing. Dated: December 4, 2017 AEGISLAW FIRM, PC M arta M anus Attorneys for Plaintiff -1- PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o MEMORANDUM OF POINTS AND AUTHORITIES l. INTRODUCTION Plaintiff Jeffrey Cristobal (“Plaintiff”) requests leave to amend his complaint to clarify that Plaintiff is pursuing a representative action pursuant to the Private Attorneys General A ct of 2004, Labor Code §§ 2698, et seq. (“PAGA”), through which Plaintiff seeks civil penalties, of which 75 percent will be allocated to the Labor and Workforce Development A gency (“LWDA”) and 25 percent to the aggrieved employees. The amendment is necessary in light of Defendant Applied Medical Resources Corporation’s (hereinafter “Defendant” or “Applied Medical”) multiple attempts to force Plaintiff to arbitrate his representative claims. The amended complaint clarifies that Plaintiff is not seeking recovery of unpaid wages but rather only the civil penalties paid largely into state coffers. Therefore, there will be no need to compel arbitration and possibly stay litigation of the remaining PAGA action. The Court should grant Plaintiff’s motion for leave to amend because California law and judicial policy is liberal in allowing amendments to pleadings and Plaintiff's amendment will further the interests of justice by allowing the parties to litigate the representative action claim for civil penalties, the only claim Plaintiff is interested in pursuing by virtue of this representative state enforcement action. Moreover, Defendant will suffer no prejudice as a result of granting Plaintiff leave to amend because no trial date has been set and the parties have yet to engage in discovery. Indeed, the amendment will serve to clarify Plaintiff’s claims and allegations and limit Defendant’s potential exposure, ultimately benefitting Defendant. Lastly, the amendment streamlines the pleading by removing the class action claims and allegations, which were previously dismissed. Accordingly, Plaintiff respectfully requests that the Court grant his motion for leave to file the [Proposed] Second A mended Complaint, a copy of which is attached as Exhibit A to the M anus Declaration filed concurrently herewith. Il. STATEMENT OF FACTS AND PROCEDURAL HISTORY This action was initially filed on December 6, 2016 as a proposed class action. Plaintiff filed his First Amended Complaint (“FAC”) on December 29, 2016, adding claims for Civil 2. PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o penalties under the PAGA. Manus Decl. 13. On or about February 22, 2017, Defendantfiled its Motion to Compel Individual Arbitration, Strike Class Allegations, and Stay PAGA Claim. Id. at 4. On June 2, 2017, the Court granted Defendant’s Motion to Compel Individual Arbitration, stayed Plaintiff’s class action pending the Supreme Court’s decision in Morris v. Ernst & Young, and stayed Plaintiff’s PAGA claim. Id. at 15. On July 17, 2017, Plaintiff dismissed his individual Labor Code claims and requested the Court lift the stay on his PAGA claim, which the Court granted. /d. at 1 6. Subsequently, Defendant moved the Court to reconsiderits decision to lift the PAGA stay. Id. at 97. On September 29, 2017, the Court reaffirmed its decision to lift the stay on Plaintiff’s PAGA claim. /d. Without engaging in any meet and confer efforts, on or about November 14, 2017, Defendant filed a Motion to Sever Plaintiffs Individual Labor Code Section 558 Claim; Compel to Arbitration; and Stay Plaintiff’s remaining PAGA claim. M anus Decl. § 8. Had D efendant met and conferred with Plaintiff prior to its most recent motion filing, Plaintiff believes the issues raised by Defendant could have been resolved by virtue of amendmentto the pleadings. On November 27, 2017, Plaintiff requested that Defendant stipulate to the filing of the [Proposed] Second Amended Complaint, forwarding a copy [Proposed] SA C to Defendant for consideration and review. Id. at 99. Il. ARGUMENT A. Relevant Law California law allows for the liberal granting of amendments to pleadings. Section 473 of the California Code of Civil Procedure provides that “[t]he court, may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading...” Cal. Civ. Proc. Code § 473(a)(1); see also id., § 576 (“Any judge, at any time before or after commencementof trail, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading.”). Consistent with the California Code of Civil Procedure, judicial policy affords “great liberality in allowing amendments” to pleadings.” Douglas v. Superior Court, 215 Cal. App. 3d 155, 158 (1989); see also Nestle v. Santa Monica, 6 Cal. 3d 920, 939 (1972) (reversing trial court’s denial of motion to amend on basis of “liberal allowance of amendments”); Board of -3- PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Trustees v. Superior Court, 149 Cal. App. 4th 1154, 1163 (Cal. Ct. App. 2007). In some instances, leave to amend a complaint will be denied if there was an unreasonable delay in seeking leave, and where, as a result of that delay, granting leave would prejudice the defendant. See A.N. v. County of Los Angeles, 171 Cal.App.4th 1058, 1068 (2009). “It is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” Morgan, 172 Cal. App. 2d at 530. B. The Proposed Amendment to Plaintiff’s Complaint is Permitted Under California’s Liberal Policies Toward Amendment. California law authorizes Plaintiff’s proposed amendment. California courts, as a matter of policy, grant motions for leave to amend pleadings liberally, and this case presents no reason to stray from that policy. Permitting Plaintiff to amend the complaint would promote judicial efficiency and economy by ensuring all of Plaintiff’s claims are maintained in one action, the PA GA representative action. Through this proposed amendment, Plaintiff desires to clarify that he is seeking only the civil penalties by removing his Labor Code § 558. Plaintiff seeks to limit the claims pursued to PA GA representative claims seeking civil penalties, largely paid to the LWDA and is eliminating his claim for individualized relief (such as the recovery of unpaid wages pursuant to Labor Code § 558). Plaintiff intends to proceeds on these limited civil penalty claims in a representative capacity. Plaintiff is the master of the complaint and thus may amend his complaint to dismiss claims he no longer wishes to pursue. Petersen v. Bank ofAmerica, 232 Cal. A pp. 4th 238, 259 (2014). Plaintiff has the right to choose not to pursue civil penalties and statutory damages under Labor Code § 558, which could form the basis to compel him to arbitration. As such, amendment of the complaint is appropriate and should be granted. Additionally, the [Proposed] Second A mended Complaint streamlines the pleadings by removing all previously dismissed individual and class action claims and limiting the prayer for relief. The Court should exercise its discretion, follow the liberal policy of allowing amendments to pleadings, and grant Plaintiff’s motion for leave to amend the complaint. Plaintiff’s request to -4- PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o amend his complaint poses no reason to disturb California courts’ policy of liberally granting leave to amend pleadings. C. Defendant Will Not Be Prejudiced By T he Proposed Amendment. Sufficient prejudice to warrant the denial of a motion for leave to amend a complaint is rarely found, and it does not exist here. Prejudice exists only when the proposed amendment would require delaying a trial and result in the loss of critical evidence or additional preparation costs. See, e.g., Magpali v. Farmers Group, Inc., 48 Cal. 4th 471 (1996) (“[w]here the trial date is set, the jury is about to be empaneled, counsel, the parties, the trial court, and the witnesses have blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery, refusal of leave to amend cannot be an abuse of discretion”). California courts have held that a change in legal theory, even one that would allow admission of evidence damaging to the opposing party,is not sufficient prejudice so long as the facts remain generally the same. See Hirsa v. Superior Court, 118 Cal. App. 3d 486, 489 (1981). Allowing the instant amendment will not prejudice the Defendant because Plaintiff does not seek to add additional claims or legal theories. In contrast, Plaintiff seeks to clarify that he seeks only PAGA civil penalties. The California Court of Appeal’s recent decision in Esparza v. KS Industries, L.P., 13 Cal. App. 5th 1228 (2017) espoused that “civil penalties are distinguishable from statutory damages because civil penalties recovered in a PAGA representative action must be allocated 75 percent to the enforcement agency and 25 percent to the aggrieved employees.” Esparza, supra 13 Cal. App. 5th at 13 (citing Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 380 (2014).) Through his amended complaint, Plaintiff now seeks to clarify that he does not intend to pursue the unpaid wages pursuant to Labor Code § 558, but rather, he is limiting the claims to pursue PAGA representative claims seeking civil penalties only. The [Proposed] SAC makesthis clear by removing Plaintiff’s claim pursuant to Labor Code § 558. As such, Defendant cannot in good faith claim to suffer prejudice by allowing Plaintiff to amend his complaint to make this important clarification. M oreover, the parties have yet to engage in discovery and there is not trial date set in this matter. Accordingly, no prejudice to Defendant exists and amendmentat this stage is appropriate and should be granted. -5- PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT © 0 0 N N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P P c o ~ N o o u i A W w W N N F P O O V 0 0 N N o o u l B A W N O- -, o O o Iv. CONCLUSION In light of Plaintiff’s good faith and timely conduct, and the fact that the amendment will not prejudice Defendant, Plaintiff respectfully requests that the Court grant his M otion for Leave to file the [Proposed] Second A mended Complaint, and that the Second A mended Complaint be deemed to be filed and served as of the date the Motion is granted. Respectfully Submitted, Dated: December 4, 2017 AEGISLAW FIRM, PC Marta M anus Attorneys for Plaintiff -6- PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O CERTIFICATE OF SERVICE |, the undersigned, am employed in the County of Orange, State of California. | am over the age of 18 and not a party to the within action; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On December 4, 2017, | served the foregoing document entitled: eo PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT; [CONCURRENTLY FILED WITH DECLARATION OF MARTA MANUS IN SUPPORT THEREOF; (PROPOSED) ORDER] on all the appearing and/or interested parties in this action by placing [_] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Steven M. Zadravecz Graham S.P. Hollis Edward S. Chang Paloma A costa Jones Day GRAHAMHOLLISAPC 3161 Michelson Drive, Suite 800 3555 Fifth Avenue Irvine, CA 92612 San Diego, CA 92103 Attorneys for Defendant: Applied Medical Attorneys for Sean Michael Sheehan Resources Corporation ] (BY MAIL) | am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. | am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(c).) [] (BY OVERNIGHT MAIL) | am personally and readily familiar with the business practiceof Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and | caused such document(s) described herein to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(c).) X (BY ELECTRONIC TRANSMISSION) | caused said document(s) to be served via electronic transmission to the addressee(s) listed above on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 4, 2017, at Irvine, California. CoGrethelGLN CERTIFICATE OF SERVICE