Motion For Leave To Amend

Motion

Cal. Super. - 4th Dist.November 9, 2017

o O 0 N N W N N O N N D N D N N N N N m e e m e e e m e a e e m m e m p e W w 3 A N U n R W N H D W N S N R W m R , AEGIS LAW FIRM, PC SAMUEL A. WONG State Bar No. 217104 KASHIF HAQUIE, State Bar No. 218672 JESSICA L. CAMPBELL, State Bar No. 280626 SHELLY D. SONG, State Bar No. 312036 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff Cem Taner, individually and on behalf ofall others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CEM TANER,individually and on behalf Case No. 30-2017-00955227-CU-OE-CXC of all others similarly situated, Assignedfor allpurposes to: Plaintiff, Hon. Kim G. Dunning Dept. CX104 vs. PLAINTIFF’S MOTION FOR LEAVE TO MAR PIZZA, INC.a California FILE FIRST AMENDED CLASS ACTION corporation; and DOES 1 through 20, COMPLAINT inclusive, Date: April 25,2018 Defendants. Time: 1:30 p.m. Department: CX104 -1- PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT OW 0 a ON th A W O N em B N N N N N N N N N = m m e m e e e a e d m a © N N A N W n A W N = O O Y E W N = o L INTRODUCTION Plaintiff Cem Taner (“Plaintiff”) seeks to amend his class action complaint brought against Defendant Mar Pizza, Inc. (“Defendant”) to add a claim for penalties pursuant to the Private Attorneys General Act of 2004, Labor Code section 2698, ef seq. (“PAGA claim”). This claim seeks penalties in addition to the relief sought for the same causes of action already alleged in Plaintiff's Complaint. Although Defendant refused to stipulate to this amendment, it will not suffer any prejudice from Plaintiff adding the PAGA claim to his Complaint. Since the PAGA claim simply seeks additional penalties based on the causes of action already alleged in his Complaint, there are no new factual allegations. Further, no discovery has been completed, no class certification motion hearing or trial date has been set, and Defendant will have ample opportunity to defend against Plaintiff's PAGA claim at the class certification and liability phases of this case. Accordingly, this Court has broad discretion to, and should, grant Plaintiff's Motion where the amendment will not cause undue prejudice or delay. II. STATEMENT OF FACTS Plaintiff initially filed this case on November 9, 2017 in the Orange County Superior Court. Declaration of Shelly D. Song (“Song Decl.”) § 2. Plaintiff’s operative Complaint includes claims for unpaid minimum and overtime wages, missed meal and rest periods, unreimbursed business expenses, and derivative claims on behalf of himself and other non-exempt employees (“Class Members”) employed from November 9, 2013 through the present. Id. at § 3. On November 14, 2017, Plaintiff submitted a letter via online filing to the Labor and Workforce Development Agency (“LWDA”) describing the same violations by Defendant alleged in Plaintiff's Complaint, and sent the letter via certified mail to Defendant. Song Decl. q 4. The LWDA never responded to Plaintiff's letter, thus allowing him to pursue his PAGA claim. Id. On March 1, 2018, Plaintiff sent a redlined draft of his proposed First Amended Complaint (“FAC”) to Defendant, and requested that Defendant stipulate to his filing of the FAC. 2. PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT o e N N N n n B R W N = N N N N N N N N N = m m e m e e e m m d e m p m e m p m ® N A Lh E W R m S © ® uN A E D P e s Song Decl. 1] 5, 7, Exhibit A. On March 27, 2018, Defendant responded that it would not stipulate to Plaintiff adding the PAGA claim to his Complaint. /d. at 5. At the time of the filing ofthis motion, no class certification motion hearing or trial date has been set, and no discovery has been completed, as the parties have agreed to exchange information and documents informally at this time. Song Decl. § 6. Further, Defendant has yet to produce any of the information or documents requested by Plaintiff. 7d. Thus, the case is still in the early stages. IL LEGAL ARGUMENT A. The Court has Discretion to Allow the Amendment Courts may,in furtherance ofjustice, and on any terms as may be proper, allow a party to amend any pleading. Cal Code Civ. Proc. §§ 473(a)(1), 576. Usually, the court’s discretion will be exercised liberally to permit amendment of the pleadings. Howard v. County ofSan Diego, 184 Cal.App.4th 1422, 1428 (2010). In fact, the policy favoring amendmentis so strong thatitis a rare case in which denial of leave to amend can be justified. “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 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.” Mabie v. Hyatt, 61 Cal.App.4th 581, 596 (1998). Here, allowing Plaintiff and other aggrieved employees in the Class to exercise their right to assert a claim for penalties based on the claims already alleged in the Complaint will allow the parties to resolve all disputed matters in the same lawsuit. B. Plaintiff’s Proposed Amendmentis Timely Courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. Atkinson v. Elk Corp., 109 Cal.App.4th 739, 761 (2003). Even an unreasonable delay in requesting leave to amend is not grounds for denying leave if the opposing party is not prejudiced by the amendment. Kittredge Sports Co. v. Superior Court, 213 Cal. App. 3d 1045, -3- PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT o e 3 N n A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1048 (1989). Here, Plaintiff's administrative exhaustion period for his PAGA claim did not expire until January 18, 2018. Song Decl. § 4. Plaintiff filed the instant Motion as soon as practicable after Defendant confirmed that it would not stipulate to the amendment on March 27, 2018. 1d at S. C. Granting Leave to Amend Will Not Prejudice Defendant Where, as here, an amendment to a complaint causes no undue prejudice to the opposing party, the Court must allow it. Atkinson, 109 Cal.App.4th at 761; Thompson Pacific Const., Inc. v. City ofSunnyvale, 155 Cal.App.4th 525, 544 (2007). Prejudice exists when the amendmentdelays the trial, results in loss of critical evidence or increases the burden of discovery right before trial. P&D Consultants, Inc. v. City of Carlsbad, 190 Cal.App.4th 1332, 1345 (2010). None of these circumstances exist here, as no trial date has been set, and no discovery has been completed. Further, Defendant has yet to produce any information or documents that have been requested informally by Plaintiff. Thus, Defendant will have ample opportunity to address Plaintiff's PAGA claim in its defense to the underlying causes of action already alleged in Plaintiff’s Complaint. See Song Decl. at q 6. If any risk ofprejudice exists,it is a risk that Plaintiff and the putative Class Members will face an unfair result. Denial of the leave to amend could force Plaintiff to either file a separate PAGA case for the same underlying Labor Code violations, resulting in greater time and expense for all parties, or forego the claim for additional penalties altogether, resulting in a denial of justice. Such an unfair choice should not be imposed here. HI. CONCLUSION For the foregoing reasons, Plaintiff requests that the Court issue an order allowing Plaintiffto file his First Amended Complaint adding a PAGA claim in furtherance ofthe interests ofjudicial economy and ofresolving all disputed matters between the parties in the same lawsuit. 1 H i" 4- PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT N O 0 1 S N B R W N N O N O N D N O N N O N N O N e m m b e m e m e m e e e m m d p e 0 N N N L n R A W N R S D N S N R W = , Dated: March 29, 2018 By: AEGIS LAW FIRM, PC Lab -5- Shelly D. Song Attorneys for Plaintiff PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT O o 0 N N n n A W N N O N N N N N N N N m m e m e m p m e e pe e e m p m e m p m © = A Un A W N =m SS © m o s Ww oP o - o o CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I 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 March 29, 2018,1 served the foregoing documententitled e PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT 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: Clark*Everson LLP Brook J. Carroll bearroll@clarkeversonlaw.com 200 N. Westlake Blvd. Suite 201 Westlake Village, CA 91362 Attorneysfor Defendant: Mar Pizza, Inc. [1 (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 the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I 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) I am personally and readily familiar with the business practice ofAegis Law Firm PC for collection and processing correspondence for overnight delivery, and I 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) I caused said document(s) to be served via electronic transmission via the above listed email addresses on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2YE); Fed. R. Civ. Proc. 5(b)(3).) [] (BY PERSONAL SERVICE) I delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed. R. Civ. Proc. 5(b)(2)(A).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 29, 2018, at Irvine, California. So AL.C Grethel Gonzalez ON CERTIFICATE OF SERVICE