Preview
1JOSHUA F. FALAKASSA (SBN: 295045)
FALAKASSA LAW, P.C.
Eh
2 1901 Avenue ofthe Stars Suite # 450
2m DEC
3 Los Angeles, Califomia 90067
Tel.: (818) 456-6168; Fax: (888) 505-0868
4 Email: josh(^falakassalaw.com
5 ARASH S. KHOSROWSHAHI (SBN: 293246)
6 LIBERTY MAN LAW
1010 F Street, Ste. 300
7 Sacramento, Califomia 95814
Tel.: (916) 573-0469; Fax: (866) 700-0787
8 Email: libertymanlaw@gmail.com
9 Attomeys for Plaintiff,
10 SAJIDA ZAMAN
11 SUPERIOR COURT OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
SAJIDA ZAMAN, Case No.: 34-2019-00252121
14
Plaintiff, MEMORANDUM OF POINTS AND
15 AUTHORITIES IN SUPPORT OF
vs.
16 PLAINTIFF'S MOTION FOR LEAVE
LIQUI-BOX CORPORATION, and DOES 1 TO FILE FIRST AMENDED
17 through 20, inclusive. COMPLAINT
18 Defendants. Date: January 16, 2020
19 Time: 2:00pm
Dept.: 53
20 Hearing Judge: Hon. David Brown
Trial Date: TBD
21
22
23
I. INTRODUCTION
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Plaintiff Sajida Zaman ("Plaintiff) moves to amend her Complaint with her [Proposed]
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First Amended Complaint for Damages and Injunctive Relief Plaintiffs Complaint alleges that
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she was 15-year employee of Defendant Liqui-Box Corporation ("Defendanf). Plaintiff alleges
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she sustained a work injury on December 3, 2018 and reported the injury to Defendant on
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January 3, 2019. Plaintiff alleges that she filed a worker's compensation claim due to her work-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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1 related injury, and that thereafter she terminated from her employment on January 10, 2019 for
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"neglecting to timely report injury" in violation of Defendant's Critical Safety Behaviors policy.
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Based on these factual allegations, Plaintiff brought claims for disability discrimination, failure
4
to engage in the interactive process, failure to provide a reasonable accommodation in violation
5
of the Fair Employment and Housing Act ("FEHA"), wrongful termination and retaliation in
6
violation of public policy, and intentional infliction of emotional disfress.
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Plaintiffs [Proposed] First Amended Complaint for Damages and Injunctive Relief
8
alleges that Defendant's Critical Safety Behaviors policy is not reasonable in violation of
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Califomia Occupational and Safety Hazard Act (" Cal OSHA") regulations. Similarly, Plaintiff
10
alleges that Defendant's termination of Plaintiff based on this work-related injury policy violates
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Cal OSHA because the policy discriminates against employees for reporting work-related
12
injuries. As such. Plaintiff now moves to amend her complaint to add these factual allegations,
13
and based thereon, seeks to add to its cause of action for wrongful termination in violation of
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public policy, and a new cause of action for violation of the Unfair Competition Law. (See Solus
15
Indus. Innovations, LLC v. Superior Court (2018) 4 Cal. 5"" 316, 326, 345-47 [The Court
16
reasoned that the federal OSH Act, which allows states to provide broader protections to
17
workers, allows states to use other enforcement mechanisms, such as civil litigation under the
18
UCL, to fiirther the state's aim of worker safety].)
19
Here, leave to amend should be granted. There is a policy of great liberality in allowing
20
the amendment of pleadings in the course of litigation, and Plaintiff must be afforded the right to
21
have her fiill case heard on the merits. Plaintiff timely brings this motion, after her counsel
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diligently reviewed documents in discovery, and consulted with opposing counsel and Plaintiff
23
to ascertain the underlying new facts alleged herein. Plaintiffs new allegations arise out of the
24
same set of facts in the Complaint. Finally, Defendant will suffer no prejudice from this
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amendment, as there is no trial date set in the matter to create prejudice in the form of delay oi
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added costs.
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Given the foregoing. Plaintiff respectfiilly requests that this Court grant Plaintiffs
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Motion for Leave to File First Amended Complaint, and deem the attached [Proposed] First
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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Amended Complaint for Damages and Injunctive Relief the new operative complaint in this
2
matter.
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II. STATEMENT OF FACTS
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A. PlaintifFs Allegations in the Original Complaint.
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On or about March 8, 2019, Plaintiff filed her Complaint. Plaintiffs Complaint alleges
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that she was a packer/inspector employee of Defendant for approximately 15 years, where she
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packed and inspected bags, stood for long periods of time, and lifted/hauled heavy loads
8
(Complaint, ^ 6.) Plaintiff alleges that on or about December 3, 2018, she suffered an injury to
9
her left knee while on the job. While at first the pain was minor and unnoticeable. Plaintiff
10
alleges that eventually her knee developed consistent and considerable pain and interfering with
11
her ability to work. (Id., ^ 1.) Plaintiff fiarther alleges that on or about January 3, 2019, she
12
reported her work injury to Defendant, and sought treatment through Defendant's workers
13
compensation provider. (Id., 1^ 7-8.) Plaintiff alleges that after she saw the workers
14
compensation doctor for her injuries. Plaintiff was ordered by Defendant's representative to go
15
home until fiirther notice. (Id., 9.)
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Plaintiff alleges that on January 10, 2019, she was wrongfully terminated because she
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"neglected to report [her] injury timely." (Id.) Plaintiff alleges that her knee injury constituted a
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disability as defined by FEHA, required her to take time off work, receive modified work duties,
19
or other reasonable accommodations. Finally, Plaintiff alleges that Defendant terminated
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Plaintiffs employment on account of her disability, and because she filed a worker's
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compensation claim, constituting retaliation. (Id., ^ 10.)
22
Based thereon. Plaintiffs Complaint alleges causes of action for (1) wrongfiil terminatior
23
in violation of public policy, (2) retaliation in violation of public policy (3) disability
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discrimination in violation of FEHA, (4) failure to engage in the interactive process in violation
25
of FEHA, (5) failure to provide a reasonable accommodation in violation of FEHA, and (6)
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intentional infliction of emotional distress. (Id., ^ 12-55.)
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///
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///
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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B. PlaintifFs Allegations in the fProposedl First Amended Complaint.
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Plaintiff now moves to amend her Complaint with the instant [Proposed] First Amended
3
Complaint for Damages and Injunctive Relief ("FAC").
4
Preliminarily, the FAC alleges that Plaintiff was a 16-year employee, rather than a 15-
5
year employee. (FAC, ^ 6.) The FAC further clarifies that Plaintiff was not aware until January
6
3, 2019 that her knee injury was work-related, and that the injury prevented her from moving,
7
walking, and working. (Declaration of Arash Khosrowshahi in Support of Motion for Leave to
8
File First Amended Complaint ["Khosrowshahi Decl."], ^ 4; FAC, ^ 7.) The FAC clarifies and
9
alleges that Plaintiff was terminated for violating Defendant's Critical Safety Behaviors ("CSB")
10
policy, which requires employees to "[ijmmediately report all incidents to your supervisor,
11
management team member no matter how minor or without exception", and that "[a]ny violation
12
of these Critical Safety Behaviors will result in immediate termination of employment."
13
(Khosrowshahi Decl., ^ 4; FAC, ^ 9.) Notably, Plaintiff alleges that Defendant's CSB policy is
14
not a reasonable employee work-related injury policy in violation of the Califomia Occupational
15
Health and Safety Act ("Cal OSHA"). (Khosrowshahi Decl., ^ 4; FAC, ^ 10.)
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Here, Plaintiffs new allegations are a factual basis for the first and second causes of
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action for (1) wrongful termination and (2) retaliation in violation of public policy respectively
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by citing the Califomia OSHA regulations as fimdamental Califomia public policy which
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Defendant's CSB policy violates. (Khosrowshahi Decl., J 5; FAC, 14-16, 20-24.)
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Additionally, Plaintiff alleges that pursuant to its CSB policy, Defendant discriminated
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against Plaintiff by terminating her employment for reporting a work-related injury
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(Khosrowshahi Decl., ^ 6; FAC, ^ 58.) Next, based on Plaintiffs new allegations conceming
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Defendant's CSB policy, as stated above, Plaintiff alleges a new cause of action for violation oi
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the Unfair Competition Law (Bus. & Prof Code §§ 17200 et seq., hereinafter "UCL")
25
(Khosrowshahi Decl., ^ 7; FAC, ^ 55-64.) Notably, Plaintiff alleges that she was terminated foi
26
violating the CSB policy, which itself violates 29 CFR § 1904.35 and 8 CCR §§ 14300.35
27
14300.36 (the federal and Califomia OSHA regulations at issue). (Khosrowshahi Decl., ^ 6;
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FAC, Tit 56-58.)
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Moreover, Plaintiff alleges that since she has suffered an injury-in-fact, she can bring a
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private cause of action for the OSHA violations under the UCL per the authority in the Califomia
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Supreme Court case Solus Indus. Innovations, LLC v. Superior Court (2018) 4 Cal. 5"^ 316, 326
4
345-47 (The Court reasoned that the federal OSH Act, which allows states to provide broader
5
protections to workers, allows states to use other enforcement mechanisms, such as civil
6
litigation under other state law statutory schemes including the UCL, to further the state's aim of
7
worker safety). (Khosrowshahi Decl., ^1 6; FAC, ^ 59-61.) In Solus, the Califomia Supreme
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Court held that a claim under Califomia's UCL were not preempted by federal law and may be
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brought based on violations of OSHA because "[i]n the absence of a clear and manifest
10
congressional purpose to preempt claims such as the UCL and FAL claims asserted in this
11
action, such claims are encompassed in the presumption against preemption that arises upon a
12
state's assumption of responsibility under the federal OSH Act to regulate worker safety and
13
health." (Solus, 4 Cal. 5"^ at 347.)
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Finally, Plaintiff requests in her Prayer for Relief injunctive relief and restitution for this
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UCL cause of action. (Khosrowshahi Decl., 8; FAC, p. 14, line 28, p. 15, lines 1-9.)
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C. Plaintiff Brings This Motion at the Earliest Opportunity.
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Plaintiff brings the instant Motion at the earliest reasonable opportunity. (Khosrowshahi
18
Decl., 9-10.) Plaintiffs counsel has been diligently reviewing over 1,000 pages of discovery
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provided by Defendants in response to Plaintiffs Requests for Production of Documents, Sets
20
One, Two, and Three. (Id., ^ 9.) In the course of that review, including review of Defendant's
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CSB policy and other workplace injury documentation, and discussing the matter with Plaintiff,
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it became apparent that the CSB policy facially, and as applied to Plaintiffs termination, violates
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the Cal OSHA regulations. (Id.) Additional legal research made it clear that the authority in
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Solus Indus. Innovations, LLC v. Superior Court (2018) 4 Cal. 5"" 316, 326, 345-47 allows for a
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private cause of action under the UCL for the alleged OSHA violations. (Id.)
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Plaintiffs counsel reached out to Defendant's counsel on or about November 20, 2019, to
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seek a stipulation to file the FAC. (Id., ^ 10.) Not having heard from Defendant's counsel, on oi
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about December 2, 2019 Plaintiffs counsel reached out again by telephone and email to confirm
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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whether a stipulation would be agreed to. (Id.) On or about December 4, 2019, Defendant's
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counsel represented that they were in trial in Los Angeles, and requested that they get back to
3
Plaintiffs counsel by December 11, 2019 regarding the stipulation. (Id.) On or about December
4
8, 2019, Defendant's counsel requested they get back to Plaintiffs counsel on the stipulation by
5
December 13, 2019. (Id.) On December 13, 2019, Defendant's counsel represented that
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Defendant would not agree to a stipulation because Defendant "firmly" believes Plaintiff carmot
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succeed on her proposed UCL claim. (Id.) Plaintiff thereforefilesthis instant Motion.
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III. ARGUMENT
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A. This Motion Complies with the Requirements of the California Rules of Court.
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The accompanying Notice (see pp. 2-15) to this instant Motion duly complies with
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Califomia Rules of Court Rule 3.1324, subd. (a)(2)-(3), and the attached FAC complies with
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subdivision (a)(1) therein. The attached Declaration of Arash Khosrowshahi complies with
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subdivision (b) therein. (See Khosrowshahi Decl., ^ni 3-10.)
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B. Leave to Amend Must Be Granted as There is No Prejudice to Defendant.
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Courts may, in thefiirtheranceof justice, allow a party to amend any pleading on any
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terms as may be proper. (Code Civ. Proc. §§ 473(a), 576.) There is a general policy of great
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liberality in allowing amendments of pleadings at any stage in the litigation to allow cases to be
18
decided on their merits. (Desny v. Wilder (1956) 46 Cal.2d 715, 751; see also Klopstock v.
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Superior Court (1941) 17 Cal.2d 13, 19; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920,
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939; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.) Indeed,
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"...it is a rare case in which 'a court will be justified in refiising a party leave to
22 amend his pleadings so that he may properly present his case.' (Citations
23 omitted.) 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
24 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 ertor but an
25 abuse of discretion. (Citations omitted.)"
26 (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; see also Solit v. Taokai Bank, Ltd.
27 (1999) 68 Cal.App.4th 1435, 1448 [amending complaint is liberally granted provided no
28 prejudice results to opposing party.])
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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A trial court may deny an otherwise proper amendment if there was an unwartanted delay
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in bringing the motion to amend. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) To
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deny leave to amend based on an unreasonable delay in moving for leave to amend, however, the
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opposing party must have been misled or prejudiced by the delay. (Kittredge Sports Co. v.
5
Superior Court (\999) 213 Cal.App.3d 1045, 1048.) For instance, an amended complaint is not
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to delay the trial or necessitate added preparation costs. (Hirsa, 118 Cal.App.3d at 490.) But
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when leave is sought well before trial and the proposed amendments only concem the
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introduction of new legal theories that "relate to the same general set of facts" previously
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pleaded, leave should be granted. (Kittredge Sports Co., 213 Cal. App. 3d at 1048.)
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Here, Plaintiff must be granted leave to amend her complaint to allege new factual
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allegations and a new cause of action under the UCL given the nature of her claims. The policy
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of great liberality in allowing amendments of pleadings should allow Plaintiff to bring her fiill
13
case to be decided on the merits. Plaintiff seeks to pursue her claim under the UCL cause of
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action, and bolster her existing wrongful termination/retaliation in violation of public policy
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claims due to Defendant's violations of the Cal OSHA regulations in terminating Plaintiff
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Plaintiff must be allowed to present these claims to be heard on the merits. Defendants are not
17
prejudiced, and it would be abuse of discretion for the Court to deprive Plaintiff to assert
18
meritorious causes of action here.
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Moreover, there is no unwartanted delay in bringing the instant Motion. Plaintiffs
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counsel has been diligently reviewing produced documents as they are received in the course of
21
litigation, and has timely interviewed Plaintiff fo determine more facts related to her case in light
22
of the documents. Indeed, Defendant has not been prejudiced by any perceived delay. Defendant
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and its counsel were given over three weeks to agree to a stipulation, but refused to do so without
24
any reason. There is no trial date curtently scheduled for Plaintiffs amendments to delay trial or
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necessitate added preparation costs. Leave to amend is being sought well before trial here, and
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the proposed amendments only concem the introduction of new legal theories that relate to the
27
same general set of facts previously pleaded related to Plaintiffs disability discrimination
28
claims. As such, leave should be granted.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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IV. CONCLUSION
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Given the foregoing, Plainfiff respectfully requests that this Court GRANT Plaintiffs
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Motion for Leave to File First Amended Complaint, and deem the attached [Proposed] First
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Amended Complaint for Damages and Injunctive Relief the new operative complaint.
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Dated this 17th of December, 2019
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Respectfiilly Submitted,
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Arash S. Khosrowshahi, Esq.
10 Joshua S. Falakassa, Esq.
Attomeys for Plaintiff Sajida Zaman
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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Preview
1JOSHUA F. FALAKASSA (SBN: 295045) FALAKASSA LAW, P.C. Eh 2 1901 Avenue ofthe Stars Suite # 450 2m DEC 3 Los Angeles, Califomia 90067 Tel.: (818) 456-6168; Fax: (888) 505-0868 4 Email: josh(^falakassalaw.com 5 ARASH S. KHOSROWSHAHI (SBN: 293246) 6 LIBERTY MAN LAW 1010 F Street, Ste. 300 7 Sacramento, Califomia 95814 Tel.: (916) 573-0469; Fax: (866) 700-0787 8 Email: libertymanlaw@gmail.com 9 Attomeys for Plaintiff, 10 SAJIDA ZAMAN 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 SAJIDA ZAMAN, Case No.: 34-2019-00252121 14 Plaintiff, MEMORANDUM OF POINTS AND 15 AUTHORITIES IN SUPPORT OF vs. 16 PLAINTIFF'S MOTION FOR LEAVE LIQUI-BOX CORPORATION, and DOES 1 TO FILE FIRST AMENDED 17 through 20, inclusive. COMPLAINT 18 Defendants. Date: January 16, 2020 19 Time: 2:00pm Dept.: 53 20 Hearing Judge: Hon. David Brown Trial Date: TBD 21 22 23 I. INTRODUCTION 24 Plaintiff Sajida Zaman ("Plaintiff) moves to amend her Complaint with her [Proposed] 25 First Amended Complaint for Damages and Injunctive Relief Plaintiffs Complaint alleges that 26 she was 15-year employee of Defendant Liqui-Box Corporation ("Defendanf). Plaintiff alleges 27 she sustained a work injury on December 3, 2018 and reported the injury to Defendant on 28 January 3, 2019. Plaintiff alleges that she filed a worker's compensation claim due to her work- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 of 8 1 related injury, and that thereafter she terminated from her employment on January 10, 2019 for 2 "neglecting to timely report injury" in violation of Defendant's Critical Safety Behaviors policy. 3 Based on these factual allegations, Plaintiff brought claims for disability discrimination, failure 4 to engage in the interactive process, failure to provide a reasonable accommodation in violation 5 of the Fair Employment and Housing Act ("FEHA"), wrongful termination and retaliation in 6 violation of public policy, and intentional infliction of emotional disfress. 7 Plaintiffs [Proposed] First Amended Complaint for Damages and Injunctive Relief 8 alleges that Defendant's Critical Safety Behaviors policy is not reasonable in violation of 9 Califomia Occupational and Safety Hazard Act (" Cal OSHA") regulations. Similarly, Plaintiff 10 alleges that Defendant's termination of Plaintiff based on this work-related injury policy violates 11 Cal OSHA because the policy discriminates against employees for reporting work-related 12 injuries. As such. Plaintiff now moves to amend her complaint to add these factual allegations, 13 and based thereon, seeks to add to its cause of action for wrongful termination in violation of 14 public policy, and a new cause of action for violation of the Unfair Competition Law. (See Solus 15 Indus. Innovations, LLC v. Superior Court (2018) 4 Cal. 5"" 316, 326, 345-47 [The Court 16 reasoned that the federal OSH Act, which allows states to provide broader protections to 17 workers, allows states to use other enforcement mechanisms, such as civil litigation under the 18 UCL, to fiirther the state's aim of worker safety].) 19 Here, leave to amend should be granted. There is a policy of great liberality in allowing 20 the amendment of pleadings in the course of litigation, and Plaintiff must be afforded the right to 21 have her fiill case heard on the merits. Plaintiff timely brings this motion, after her counsel 22 diligently reviewed documents in discovery, and consulted with opposing counsel and Plaintiff 23 to ascertain the underlying new facts alleged herein. Plaintiffs new allegations arise out of the 24 same set of facts in the Complaint. Finally, Defendant will suffer no prejudice from this 25 amendment, as there is no trial date set in the matter to create prejudice in the form of delay oi 26 added costs. 27 Given the foregoing. Plaintiff respectfiilly requests that this Court grant Plaintiffs 28 Motion for Leave to File First Amended Complaint, and deem the attached [Proposed] First MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 2 of 8 1 Amended Complaint for Damages and Injunctive Relief the new operative complaint in this 2 matter. 3 II. STATEMENT OF FACTS 4 A. PlaintifFs Allegations in the Original Complaint. 5 On or about March 8, 2019, Plaintiff filed her Complaint. Plaintiffs Complaint alleges 6 that she was a packer/inspector employee of Defendant for approximately 15 years, where she 7 packed and inspected bags, stood for long periods of time, and lifted/hauled heavy loads 8 (Complaint, ^ 6.) Plaintiff alleges that on or about December 3, 2018, she suffered an injury to 9 her left knee while on the job. While at first the pain was minor and unnoticeable. Plaintiff 10 alleges that eventually her knee developed consistent and considerable pain and interfering with 11 her ability to work. (Id., ^ 1.) Plaintiff fiarther alleges that on or about January 3, 2019, she 12 reported her work injury to Defendant, and sought treatment through Defendant's workers 13 compensation provider. (Id., 1^ 7-8.) Plaintiff alleges that after she saw the workers 14 compensation doctor for her injuries. Plaintiff was ordered by Defendant's representative to go 15 home until fiirther notice. (Id., 9.) 16 Plaintiff alleges that on January 10, 2019, she was wrongfully terminated because she 17 "neglected to report [her] injury timely." (Id.) Plaintiff alleges that her knee injury constituted a 18 disability as defined by FEHA, required her to take time off work, receive modified work duties, 19 or other reasonable accommodations. Finally, Plaintiff alleges that Defendant terminated 20 Plaintiffs employment on account of her disability, and because she filed a worker's 21 compensation claim, constituting retaliation. (Id., ^ 10.) 22 Based thereon. Plaintiffs Complaint alleges causes of action for (1) wrongfiil terminatior 23 in violation of public policy, (2) retaliation in violation of public policy (3) disability 24 discrimination in violation of FEHA, (4) failure to engage in the interactive process in violation 25 of FEHA, (5) failure to provide a reasonable accommodation in violation of FEHA, and (6) 26 intentional infliction of emotional distress. (Id., ^ 12-55.) 27 /// 28 /// MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 3 of 8 1 B. PlaintifFs Allegations in the fProposedl First Amended Complaint. 2 Plaintiff now moves to amend her Complaint with the instant [Proposed] First Amended 3 Complaint for Damages and Injunctive Relief ("FAC"). 4 Preliminarily, the FAC alleges that Plaintiff was a 16-year employee, rather than a 15- 5 year employee. (FAC, ^ 6.) The FAC further clarifies that Plaintiff was not aware until January 6 3, 2019 that her knee injury was work-related, and that the injury prevented her from moving, 7 walking, and working. (Declaration of Arash Khosrowshahi in Support of Motion for Leave to 8 File First Amended Complaint ["Khosrowshahi Decl."], ^ 4; FAC, ^ 7.) The FAC clarifies and 9 alleges that Plaintiff was terminated for violating Defendant's Critical Safety Behaviors ("CSB") 10 policy, which requires employees to "[ijmmediately report all incidents to your supervisor, 11 management team member no matter how minor or without exception", and that "[a]ny violation 12 of these Critical Safety Behaviors will result in immediate termination of employment." 13 (Khosrowshahi Decl., ^ 4; FAC, ^ 9.) Notably, Plaintiff alleges that Defendant's CSB policy is 14 not a reasonable employee work-related injury policy in violation of the Califomia Occupational 15 Health and Safety Act ("Cal OSHA"). (Khosrowshahi Decl., ^ 4; FAC, ^ 10.) 16 Here, Plaintiffs new allegations are a factual basis for the first and second causes of 17 action for (1) wrongful termination and (2) retaliation in violation of public policy respectively 18 by citing the Califomia OSHA regulations as fimdamental Califomia public policy which 19 Defendant's CSB policy violates. (Khosrowshahi Decl., J 5; FAC, 14-16, 20-24.) 20 Additionally, Plaintiff alleges that pursuant to its CSB policy, Defendant discriminated 21 against Plaintiff by terminating her employment for reporting a work-related injury 22 (Khosrowshahi Decl., ^ 6; FAC, ^ 58.) Next, based on Plaintiffs new allegations conceming 23 Defendant's CSB policy, as stated above, Plaintiff alleges a new cause of action for violation oi 24 the Unfair Competition Law (Bus. & Prof Code §§ 17200 et seq., hereinafter "UCL") 25 (Khosrowshahi Decl., ^ 7; FAC, ^ 55-64.) Notably, Plaintiff alleges that she was terminated foi 26 violating the CSB policy, which itself violates 29 CFR § 1904.35 and 8 CCR §§ 14300.35 27 14300.36 (the federal and Califomia OSHA regulations at issue). (Khosrowshahi Decl., ^ 6; 28 FAC, Tit 56-58.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 4 of 8 1 Moreover, Plaintiff alleges that since she has suffered an injury-in-fact, she can bring a 2 private cause of action for the OSHA violations under the UCL per the authority in the Califomia 3 Supreme Court case Solus Indus. Innovations, LLC v. Superior Court (2018) 4 Cal. 5"^ 316, 326 4 345-47 (The Court reasoned that the federal OSH Act, which allows states to provide broader 5 protections to workers, allows states to use other enforcement mechanisms, such as civil 6 litigation under other state law statutory schemes including the UCL, to further the state's aim of 7 worker safety). (Khosrowshahi Decl., ^1 6; FAC, ^ 59-61.) In Solus, the Califomia Supreme 8 Court held that a claim under Califomia's UCL were not preempted by federal law and may be 9 brought based on violations of OSHA because "[i]n the absence of a clear and manifest 10 congressional purpose to preempt claims such as the UCL and FAL claims asserted in this 11 action, such claims are encompassed in the presumption against preemption that arises upon a 12 state's assumption of responsibility under the federal OSH Act to regulate worker safety and 13 health." (Solus, 4 Cal. 5"^ at 347.) 14 Finally, Plaintiff requests in her Prayer for Relief injunctive relief and restitution for this 15 UCL cause of action. (Khosrowshahi Decl., 8; FAC, p. 14, line 28, p. 15, lines 1-9.) 16 C. Plaintiff Brings This Motion at the Earliest Opportunity. 17 Plaintiff brings the instant Motion at the earliest reasonable opportunity. (Khosrowshahi 18 Decl., 9-10.) Plaintiffs counsel has been diligently reviewing over 1,000 pages of discovery 19 provided by Defendants in response to Plaintiffs Requests for Production of Documents, Sets 20 One, Two, and Three. (Id., ^ 9.) In the course of that review, including review of Defendant's 21 CSB policy and other workplace injury documentation, and discussing the matter with Plaintiff, 22 it became apparent that the CSB policy facially, and as applied to Plaintiffs termination, violates 23 the Cal OSHA regulations. (Id.) Additional legal research made it clear that the authority in 24 Solus Indus. Innovations, LLC v. Superior Court (2018) 4 Cal. 5"" 316, 326, 345-47 allows for a 25 private cause of action under the UCL for the alleged OSHA violations. (Id.) 26 Plaintiffs counsel reached out to Defendant's counsel on or about November 20, 2019, to 27 seek a stipulation to file the FAC. (Id., ^ 10.) Not having heard from Defendant's counsel, on oi 28 about December 2, 2019 Plaintiffs counsel reached out again by telephone and email to confirm MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 5 of 8 1 whether a stipulation would be agreed to. (Id.) On or about December 4, 2019, Defendant's 2 counsel represented that they were in trial in Los Angeles, and requested that they get back to 3 Plaintiffs counsel by December 11, 2019 regarding the stipulation. (Id.) On or about December 4 8, 2019, Defendant's counsel requested they get back to Plaintiffs counsel on the stipulation by 5 December 13, 2019. (Id.) On December 13, 2019, Defendant's counsel represented that 6 Defendant would not agree to a stipulation because Defendant "firmly" believes Plaintiff carmot 7 succeed on her proposed UCL claim. (Id.) Plaintiff thereforefilesthis instant Motion. 8 III. ARGUMENT 9 A. This Motion Complies with the Requirements of the California Rules of Court. 10 The accompanying Notice (see pp. 2-15) to this instant Motion duly complies with 11 Califomia Rules of Court Rule 3.1324, subd. (a)(2)-(3), and the attached FAC complies with 12 subdivision (a)(1) therein. The attached Declaration of Arash Khosrowshahi complies with 13 subdivision (b) therein. (See Khosrowshahi Decl., ^ni 3-10.) 14 B. Leave to Amend Must Be Granted as There is No Prejudice to Defendant. 15 Courts may, in thefiirtheranceof justice, allow a party to amend any pleading on any 16 terms as may be proper. (Code Civ. Proc. §§ 473(a), 576.) There is a general policy of great 17 liberality in allowing amendments of pleadings at any stage in the litigation to allow cases to be 18 decided on their merits. (Desny v. Wilder (1956) 46 Cal.2d 715, 751; see also Klopstock v. 19 Superior Court (1941) 17 Cal.2d 13, 19; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 20 939; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.) Indeed, 21 "...it is a rare case in which 'a court will be justified in refiising a party leave to 22 amend his pleadings so that he may properly present his case.' (Citations 23 omitted.) 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 24 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 ertor but an 25 abuse of discretion. (Citations omitted.)" 26 (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; see also Solit v. Taokai Bank, Ltd. 27 (1999) 68 Cal.App.4th 1435, 1448 [amending complaint is liberally granted provided no 28 prejudice results to opposing party.]) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 6 of 8 1 A trial court may deny an otherwise proper amendment if there was an unwartanted delay 2 in bringing the motion to amend. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) To 3 deny leave to amend based on an unreasonable delay in moving for leave to amend, however, the 4 opposing party must have been misled or prejudiced by the delay. (Kittredge Sports Co. v. 5 Superior Court (\999) 213 Cal.App.3d 1045, 1048.) For instance, an amended complaint is not 6 to delay the trial or necessitate added preparation costs. (Hirsa, 118 Cal.App.3d at 490.) But 7 when leave is sought well before trial and the proposed amendments only concem the 8 introduction of new legal theories that "relate to the same general set of facts" previously 9 pleaded, leave should be granted. (Kittredge Sports Co., 213 Cal. App. 3d at 1048.) 10 Here, Plaintiff must be granted leave to amend her complaint to allege new factual 11 allegations and a new cause of action under the UCL given the nature of her claims. The policy 12 of great liberality in allowing amendments of pleadings should allow Plaintiff to bring her fiill 13 case to be decided on the merits. Plaintiff seeks to pursue her claim under the UCL cause of 14 action, and bolster her existing wrongful termination/retaliation in violation of public policy 15 claims due to Defendant's violations of the Cal OSHA regulations in terminating Plaintiff 16 Plaintiff must be allowed to present these claims to be heard on the merits. Defendants are not 17 prejudiced, and it would be abuse of discretion for the Court to deprive Plaintiff to assert 18 meritorious causes of action here. 19 Moreover, there is no unwartanted delay in bringing the instant Motion. Plaintiffs 20 counsel has been diligently reviewing produced documents as they are received in the course of 21 litigation, and has timely interviewed Plaintiff fo determine more facts related to her case in light 22 of the documents. Indeed, Defendant has not been prejudiced by any perceived delay. Defendant 23 and its counsel were given over three weeks to agree to a stipulation, but refused to do so without 24 any reason. There is no trial date curtently scheduled for Plaintiffs amendments to delay trial or 25 necessitate added preparation costs. Leave to amend is being sought well before trial here, and 26 the proposed amendments only concem the introduction of new legal theories that relate to the 27 same general set of facts previously pleaded related to Plaintiffs disability discrimination 28 claims. As such, leave should be granted. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 7 of 8 1 IV. CONCLUSION 2 Given the foregoing, Plainfiff respectfully requests that this Court GRANT Plaintiffs 3 Motion for Leave to File First Amended Complaint, and deem the attached [Proposed] First 4 Amended Complaint for Damages and Injunctive Relief the new operative complaint. 5 Dated this 17th of December, 2019 6 Respectfiilly Submitted, 7 8 9 Arash S. Khosrowshahi, Esq. 10 Joshua S. Falakassa, Esq. Attomeys for Plaintiff Sajida Zaman 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 8 of 8