Reply In Support of Motion

Reply

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

2 W N N O e e 1 O N Wi n 10 11 12 13 14 15 16 17 18 19 | 20 21 22 23 24 25 2 | 27 28 AEGIS LAW FIRM,PC SAMUEL A. WONG State Bar No. 217104 KASHIF HAQUE, 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 of all 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 REPLY IN SUPPORT OF MAR PIZZA, INC., a California MOTION FOR LEAVE TO FILE FIRST corporation; and DOES 1 through 20, AMENDED CLASS ACTION COMPLAINT inclusive, Date: April 25, 2018 Defendants. Time: 1:30 p.m. Department: CX104 .1- PLAINTIFF'S REPLY ISO MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTIONCOMPLAINT + S N O 0 0 1 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L INTRODUCTION Defendants Opposition is solely based on two incorrect assumptions: that the one-year statute of limitations applicable to claims for penalties pursuant to the Private Attorneys General Act of 2004, Labor Code section 2698, ef seq. (“PAGA”) also encompasses the entire liability period for which an aggrieved employee may collect the PAGA penalties, and that the aggrieved employee can only seek these penalties on behalf of himself. These assumptions are neither are supported by law nor valid reasons to deny leave to amend. Thus, Defendant’s Opposition provides no reasons why the Court should not grant Plaintiff leave to file his amended Complaint. II. LEGAL ARGUMENT A. Defendant Fails to Identify Any Prejudice it Would Suffer as a Result of the Amendment As an initial matter, Defendant’s Opposition ignores the legal standard for leave to amend, which considers whether the adverse party will suffer prejudice. Defendant makes no attempt to identify any prejudice, instead arguing that Plaintiff “lacks standing” to assert his PAGA claim for part ofthe period for which he seeks relief, which really means Defendant believes Plaintiff is owed less damages than he seeks. Defendant is not arguing that the entire claim is barred, but rather that Plaintiff cannot recover damages for the entire period: Although Plaintiff disagrees, this argument can be properly addressed after the amendment is added, either in pleadings challenges, dispositive motions, or damages determinations. Thus, the Court’s analysis can end with the finding that Defendant will suffer no prejudice. Out of an abundance of caution, however, Plaintiff addresses Defendant’s arguments below. B.Plaintiff Has Standing to Bring His PAGA Claim Under California Code of Civil Procedure section 340, Plaintiffmay seek PAGA penalties for violations committed during the year prior to filing the Complaint through the present. See Cal. Code Civ. Proc. § 340(a); Thomas v. Home Depot USA Inc., 527 F. Supp. 2d 1003, 1007] (N.D. Cal. 2007). Defendant’s Opposition freely admits that Plaintiff has timely exhausted his administrative remedies with the LWDA. See Opposition at 2:12-15. However, Defendant 2- PLAINTIFF'S REPLY ISO MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTIONCOMPLAINT \ O o o ~ J a N w n = W w N o - N S N N N N O N N N = o m e m p m e e e m p m e e e m E Y B E E E N R E E 2 X 3 8 5 3 5 2 5 8 2 = misunderstands that this statute of limitations only applies to Plaintiff's eligibility for commencing a civil action pursuant to PAGA. Defendant’s Opposition wrongly assumes, without providing any supporting authority, that the representative plaintiff may only seek penalties for the length oftime that he/she was employed during that one year, but Defendant fails to account for the other aggrieved employees who were employed for different periods of time during the liability period. Defendant misunderstands the nature of a class action that includes a PAGA claim in arguing Plaintiff is seeking PAGA penalties all the way back to November 9, 2013. This statement confuses the class period for the PAGA liability period. The only reference to November 9, 2013 in Plaintiff's Motion was in his statement of facts, which merely quoted the class definition as background regarding the case as currently-pending. Plaintiffs proposed PAGA amendment seeks penaities for violations committed against each aggrieved employee from the start of the one-year period through the date ofthe liability finding. Defendant contends that Plaintiff would somehow be time-barred from pursuing his PAGA claim because he worked for “only” three months, again without any supporting authority. Defendant purely relies on case law which denied or dismissed PAGA claims for entirely different reasons. See Opposition to Plaintif’s Motion for Leave to Amend Complaint (“Opposition”), 3:26-4:18 (citing cases). In those cases, the courts found (1) a union was not an aggrieved employee (Amalgamated Transit), (2) PAGA penalties cannot be awarded at trial for time periods when Defendant committed no violations against any employees (Thurman v. Bayshore), and (3) an employee who settled all of his or her wage claims and dismissed those claims with prejudice is not aggrieved (Kim v. Reins). None of those situations apply to the instant case. Defendant’s argument that Plaintiff may only seek penalties for the time that he worked directly contradicts the PAGA statute, which expressly provides that an aggrieved employee may bring a civil action pursuant to PAGA “on behalf of himself or herself and other current or former employees.” Cal. Lab. Code § 2699(a). In fact, under the statute, “‘aggrieved employee’means -3- PLAINTIFF'S REPLY ISO MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTIONCOMPLAINT w v B s W N O o o o ~ ~ A N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” Cal. Lab. Code § 2699(c) (emphasis added). California’s Supreme Court has recognized that nothing more than “alleged violations” is required prior to filing suit under PAGA. Williams v. Superior Court, 3 Cal. 5th 531, 546 (2017) (quoting the definition of “aggrieved employee” and noting, “If the Legislature intended to demand more than mere allegations as a condition to the filing of suit or preliminary discovery, it could have specified as much. That it did not implies no such heightened requirement was intended.”). This is the nature of a representative action - that a plaintiff can bring claims on behalf of all aggrieved employees, seeking penalties only for the violations committed against each aggrieved employee. As Defendant’s arguments have no basis in law or even in practice, Defendant has utterly failed to show that Plaintiff somehow lacks standing to pursue his PAGA claim, at least at the pleading stage. Thus, Plaintiffmay allege PAGA claims through this action. B. Plaintiff’s PAGA Claim Will Relate Back to His Complaint Defendant’s Opposition contends that Plaintiff's PAGA claim does notrelate back to the original filing of the Complaint without providing any supporting authority. Although relation back is not at issue in a motion for leave to amend, Plaintiff will point out the standard for relation back, which is “an amendment seeking new damages relates back to the original complaint if such damagesresulted from the same operative facts-i.e., the same misconduct and the same injury-previously complained of.” Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1200 (2008) (holding that the plaintiffs’ PAGA claim related back to the original complaint because it addressed the same set of facts). Here, as in Amaral, Plaintiffs PAGA claim is based on the exact same set of facts alleged in Plaintiffs Complaint, which Defendant’s Opposition does not dispute. As such, Plaintiff’s PAGA claim will relate back to his original Complaint. I 7 1 4. PLAINTIFF’S REPLY ISO MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTIONCOMPLAINT B H W N O e 3 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. CONCLUSION For all of the foregoing reasons, Plaintiff requests that the Court issue an order allowing Plaintiffto file his First Amended Complaint adding a PAGA claim. Dated: April 18,2018 AEGIS LAW FIRM, PC By: JG Shelly D~Song Attorneys for Plaintiff -5- PLAINTIFF'S REPLY ISO MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTIONCOMPLAINT O w 0 0 ~ ~ O N W n B a Ww W N D N O N O N D N N N N N N m m E e e m e e e e e m e s e s 0 ~ - O N W n B R W R N = = D 0 S N W w W N D = 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 April 18, 2018, 1 served the foregoing documententitled e PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT on all the appearing and/or interested parties in this action by placing U1] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Clark*Everson LLP Brook J. Carroll bearroli@clarkeversonlaw.com 200 N. Westlake Blvd. Suite 201 Westlake Village, CA 91362 Attorneysfor Defendant: Mar Pizza, Inc. Cl (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Underthat 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. 1 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).) X (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).) [] (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)(2Y(E); Fed. R. Civ. Proc. 5(b)(3).) ] (BY PERSONAL SERVICE) 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 April 18, 2018,at Irvine, California. Hows HnQ Grethel Gonzalez®™ CERTIFICATE OF SERVICE