Suhail Farran vs. Doordash Inc.

Motion for Leave to Amend

Cal. Super. - 4th Dist.May 11, 2018

O L N N n n B W R N O N N N N N N N N m m e m p m p m m m e m e m e m p e c o ~~ ] N N n n B R W N = O O 0 O N N R W N = D AEGIS LAW FIRM, PC KASHIF HAQUIE, State Bar No. 218672 SAMUEL A. WONG State Bar No. 217104 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 Suhail Farran SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE SUHAIL FARRAN,individually and on Case No. 30-2018-00992677-CU-OE-CXC behalfof all others similarly situated, PLAINTIFF’S MOTION FORLEAVE TO Plaintiff, FILE FIRST AMENDED REPRESENTATIVE ACTION COMPLAINT w Date: August 10, 2018 DOORDASH, INC.; and DOES1-10, Time: 10:00 a.m. inclusive, Department: CX105 Defendants. -1- PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED REPRESENTATIVE ACTIONCOMPLAINT A w N N N O 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 Plaintiff Suhail Farran (“Plaintiff”) seeks to amend his class action complaint brought against Defendant DoorDash, Inc. (“Defendant”) to dismiss his individual and class action claims, and 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 for certain underlying Labor Code violations, most ofwhich are already alleged in Plaintiffs 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 penalties that are mainly based on the same violations already alleged in his Complaint, there are no new factual allegations. Further, as Plaintiff’s Complaint was filed less than three months ago, no discovery has been completed, no trial date has been set, and Defendant will have ample opportunity to defend against Plaintiffs PAGA claim at the liability phase ofthis case. Accordingly, this Court has broad discretion to, and should, grant Plaintiffs Motion where the amendment will not cause undue prejudice or delay. II. STATEMENT OF FACTS Plaintiff initially filed this case on May 11, 2018 in the Orange County Superior Court. Declaration of Shelly D. Song (“Song Decl.”) 2. Plaintiffs 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 May 11, 2014 through the present. Id. at § 3. On May 16, 2018, Plaintiff submitted a letter via online filing to the Labor and Workforce Development Agency (“LWDA”) describing the same violations by Defendant alleged in Plaintift’s Complaint along with violations of Labor Code sections 1174, 1174.5 and 1175 for failure to keep accurate records, and sent the letter via certified mail to Defendant. Song Decl. 9 4. Plaintiffs administrative exhaustion period for his PAGA claim expires on July 20, 2018. As of] the date ofthe filing of Plaintiff’s instant Motion, the LWDA has not responded to the letter. If the LWDA decides to open an investigation, Plaintiff will notify the Court immediately. 2- PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT O R N N n n A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Otherwise, Plaintiff will have exhausted his administrative remedies by the time Plaintiffs Motion is heard. Id. On June 8, 2018, Defendant’s counsel informed Plaintiff’s counsel of the existence of a purported arbitration agreement with a class action waiver (“Agreement”). Song Decl. § 5. After reviewing the Agreement and additional documentation from Defendant, Plaintiff communicated his intent to dismisshisclass action claims and add a PAGA cause of action, and sent drafts ofhis proposed First Amended Complaint (“FAC”) and a stipulation to allow Plaintiff to amend his Complaint to Defendant. /d., Exhibit A. Defendant did not respond to Plaintiffs email, and instead filed a Petition to Compel Arbitration and Stay Proceedings. Id. At the time ofthe filing of this motion, no trial date has been set, and no discovery has been completed. Song Decl. q 6. Further, Defendantjust filed its responsive pleading on or about July 2, 2018. Id. Thus,the caseis still at a very early stage. II. 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 amendment is so strong that it is a rare case in which denial of leave to amend can be justified. “If the motion to amendis 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 of the 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 to exercise their right to assert a claim for penalties based on the same Labor Code violations already alleged in the Complaint will allow the parties to resolve all disputed matters that Plaintiff is entitled to pursue through the courts. H 3- PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT O o 0 N N R W N = N N N D N D N N N = m m e m e d e m e m m l p m e m p m E Q 8 X R Y U RP I R E 2 3 5 3 3 2 2 5 2 5 0 2 5 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, 1048 (1989). Here, Plaintiff’s administrative exhaustion period for his PAGA claim does not expire until July 20, 2018. Song Decl. 4. Plaintiff filed the instant Motion as soonas practicable after Defendant failed to respond to Plaintiff’s request to stipulate to the amendment, and instead filed a petition to compelarbitration of Plaintiff's claims. Id. at § 5. C. Granting Leave to Amend Will Not Prejudice Defendant Where, as here, an amendmentto 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 amendment delays 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 just filed its responsive pleading on or about July 2, 2018. Thus, Defendant will have ample opportunity to defend against Plaintiff's PAGA claim. See Song Decl. at q 6. If any risk of prejudice exists,it is a risk that Plaintiff and the aggrieved employees will face an unfair result. Denial of the leave to amend could force Plaintiff to dismiss this case and file a separate PAGA case for the same underlying Labor Code violations, resulting in greater time and expense for all parties, as well as reduced recovery for the aggrieved employees. Such an unfair choice should not be imposed here. Further, no class members would be prejudiced by the dismissal of the class claims. The dismissal ofthe class claims against Defendant is without prejudice. Song Decl. § 8. No class has been certified, and no notice of pendency of this action has been provided to putative class 4. PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT t h R A W N L o e e N a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 members. Id. Plaintiff is unaware of any putative class member foregoing filing their own claims in reliance on the pendency ofthis case. Id. As such, the Court should dismiss the class claims without notice to the class members, and allow Plaintiff to add a PAGA cause of action to his Complaint. I. CONCLUSION For the foregoing reasons, Plaintiff requests that the Court issue an order allowing Plaintiff to file his First Amended Complaint dismissing Plaintiff’s individual and class action claims, and adding a PAGA claim in furtherance of the interests of judicial economy and of resolving all disputed matters between the parties that Plaintiffis entitled to pursue in this Court. Dated: July 13, 2018 AEGIS LAW FIRM, PC ” Shelfy D. Song Attorneys for Plaintiff -5- PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT o O o e 3 SA N w n B R A W N R N N N N N N N N N m e e m e m e m e m p m e d e m p m C O N N A A L n R W = O Y W N N N R W R 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 July 13, 2018, I served the foregoing document entitled ¢ PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED REPRESENTATIVE 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: Stephanie Balitzer sbalitzer@gibsondunn.com Michael Holecek mholecek@gibsondunn.com Theane Evangelis tevangelis@gibsondunn.com GIBSON DUNN & CRUTCHER LLP 333 S Grand Ave Los Angeles, CA 90071 Joshua S. Lipshutz jlipshutz@gibsondunn.com Austin V. Schwing aschwing(@gibsondunn.com Peter C. Squeri psqueri@gibsondunn.com 555 Mission Street, Suite 3000 San Francisco, CA 94105 Andrew M. Spurchise Sophia Behnia sbehnia@littler.com LITTLER MENDELSON P.C 333 Bush Street, 34™ Floor San Francisco, CA 94105 Attorneysfor Defendant. Doordash, Inc. X (BY ELECTRONIC TRANSMISSION) I 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).) CERTIFICATE OF SERVICE o O 0 3 O N n n A W N c c N N W n B W N D = O O e Y N R W N D = o I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ~~ GrethelHoultHef Executed on July 13, 2018,at Irvine, California. De CERTIFICATE OF SERVICE