Preview
1 JESSICA RIGGIN (SBN 281712)
jriggin@rukinhyland.com
2 RUKIN HYLAND & RIGGIN LLP
1939 Harrison Street, Suite 925
3
Oakland, CA 94612
4 Telephone: (415) 421-1800
Facsimile: (415) 421-1700
5
MATTHEW C. HELLAND (SBN 250451)
6 helland@nka.com
DANIEL BROME (SBN 278915)
7 dbrome@nka.com
NICHOLS KASTER, LLP
8 235 Montgomery Street, Suite 810
San Francisco, CA 94104
9 Telephone: (415) 277-7235
Facsimile: (415) 277-7238
10
Attorneys for Plaintiffs
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN MATEO
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ALIDA MAZARIEGOS, PAULA CASE NO.: 20-CIV-04267
14 GONZALEZ, and JAIME AMAYA
PLAINTIFFS’ NOTICE OF MOTION
15 AND MOTION FOR LEAVE TO FILE
Plaintiffs, on behalf of themselves
16 and all others similarly situated, SECOND AMENDED COMPLAINT
17 v. Judge: Hon. Nancy L. Fineman
VANGUARD CLEANING SYSTEMS, Dept.: 04
18 Date: June 7, 2023
INC.; RR FRANCHISING, INC., D/B/A
VANGUARD CLEANING SYSTEMS OF Time: 2:00 p.m.
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SOUTHERN CALIFORNIA AND D/B/A
20 VANGUARD CLEANING SYSTEMS OF
NORTHERN CALIFORNIA; BUDDHA
21 CAPITAL CORPORATION, D/B/A
22 VANGUARD CLEANING SYSTEMS OF
SACRAMENTO, D/B/A VANGUARD
23 CLEANING SYSTEMS OF THE
CENTRAL VALLEY, AND D/B/A
24 VANGUARD CLEANING SYSTEMS OF
THE CENTRAL COAST; AND WINE
25 COUNTRY VENTURES, INC. D/B/A
26 VANGUARD CLEANING SYSTEMS OF
THE NORTH BAY, AND DOES 1
27 THROUGH 10, INCLUSIVE,
28 Defendants.
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
1 TABLE OF CONTENTS
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I. INTRODUCTION ............................................................................................................... 1
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II. BACKGROUND ................................................................................................................. 2
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A. Specific Allegations in the Initial and Amended Complaints ................................. 2
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B. Proposed Amendments ............................................................................................ 3
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C. Efforts to Meet and Confer...................................................................................... 3
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8 III. ARGUMENT ...................................................................................................................... 4
9 A. Leave to Amend Should Be Liberally Granted ....................................................... 4
10 B. The Criteria for Amending the Complaint Are Satisfied ........................................ 5
11 III. CONCLUSION ................................................................................................................... 6
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NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT i
TABLE OF AUTHORITIES
1 Page(s)
2 Cases
3 Bd. of Trustees v. Superior Court (2007) 149 Cal. App. 4th 1154 ................................................. 6
4 Hanna v. Hirschhorn (1931) 112 Cal. App. 438 ............................................................................. 6
5 Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213 .......................... 3
6 Jaimez v. Daiohs USA, Inc. (2010) 181 Cal. App. 4th 1286 ....................................................... 5, 7
7 Keeble v. Brown (1954) 123 Cal. App. 2d 126 ............................................................................... 6
8 Klopstock v. Superior Court (1941) 17 Cal.2d 13........................................................................... 6
9 Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290 ............................................................... 7
10 Sky Sports, Inc. v. Superior Court (2011) 201 Cal.App.4th 1363 ................................................... 3
11 Statutes
12 C.C.P. §473(a)(1) ............................................................................................................................ 6
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NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT ii
1 NOTICE OF MOTION AND MOTION
2 TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that on May 2, 2023, at 2:00 p.m., or as soon thereafter as this matter
4 may be heard in the courtroom of the Honorable Nancy L. Fineman, in Department 4 of the
5 Superior Court of California for the County of San Mateo, Plaintiffs will and hereby do move the
6 Court for an order permitting the filing of the Second Amended Complaint attached as Exhibit 1
7 to the accompanying Declaration of Daniel Brome (“Brome Declaration”). 1
8 This motion is made pursuant to discussions with the Court at the most recent hearing on
9 Plaintiffs’ Renewed Motion for Class Certification, held on March 28, 2023, and is based on C.C.P.
10 § 473(a)(1) and the authorities cited in Plaintiffs’ accompanying Memorandum of Points and
11 Authorities (“Memorandum”). In support of the motion, Plaintiffs rely on their Memorandum, the
12 Brome Declaration and exhibits thereto, and all files, records, and proceedings in this matter.
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14 Dated: April 19, 2023 NICHOLS KASTER, LLP
15 By: /s/ Daniel S. Brome
16 Matthew C. Helland
Daniel S. Brome
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Dated: April 19, 2023 RUKIN HYLAND & RIGGIN LLP
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By: /s/ Jessica Riggin
19 Jessica Riggin
Attorneys for Plaintiffs
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A redline version showing the proposed amendments is attached as Exhibit 2 to the Brome
28 Declaration.
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT iii
1 I. INTRODUCTION
2 Plaintiffs bring the present motion to amend to add Named Plaintiffs whose contracts
3 include arbitration agreements, and to clarify which claims are being pursued on a class basis or
4 an individual basis. These changes stem from concerns raised by the Court in response to Plaintiffs’
5 initial and renewed class certification motions.
6 The original Named Plaintiffs (Alida Mazariegos, Jaime Amaya, and Paula Gonzalez) are
7 not subject to arbitration agreements. Plaintiffs sought to certify a class that included cleaners with
8 and without arbitration agreements. In its tentative ruling, the Court found “that Plaintiffs, who do
9 not have arbitration clauses, do not have standing to represent putative class members who do have
10 arbitration clauses.” As discussed during the recent hearing on Plaintiffs’ Renewed Motion for
11 Class Certification, on March 28, 2023, rather than exclude those cleaners who have arbitration
12 clauses from a certified class, Plaintiffs seek to amend to add Named Plaintiffs who do have
13 arbitration clauses.
14 Additionally, the proposed amendments clarify that Plaintiffs are pursuing claims One
15 (expense reimbursement), Two (unlawful withholding and receipt of earned wages), Six (failure
16 to provide accurate wage statements), and Eight (unfair competition) on a class basis; Plaintiffs no
17 will not seek certification of claims Three (meal periods), Four (failure to authorize and permit
18 rest periods), Five (overtime compensation), or Seven (waiting time penalties), although the
19 Named Plaintiffs continue to pursue those claims on an individual basis.
20 The proposed amendments do not seek to expand the existing claims, and come as no
21 surprise to Defendants, as Defendants have known since at least July 6, 2022 (when Plaintiffs filed
22 their Reply in support of the initial class certification motion) that Plaintiffs sought to represent
23 cleaners who were subject to arbitration clauses, and would seek leave to amend in order to do so
24 if necessary. Plaintiffs specifically argued that class certification motion was not the place to
25 exclude individuals who were subject to arbitration agreements, but that Defendants would be free
26 to file a motion to compel arbitration after class certification. See Hendershot v. Ready to Roll
27 Transportation, Inc. (2014) 228 Cal.App.4th 1213, 1223–24, n. 7 (citing Sky Sports, Inc. v.
28 Superior Court (2011) 201 Cal.App.4th 1363).
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 1
1 Accordingly, Plaintiffs respectfully request that the Court permit the proposed
2 amendments, which are liberally allowed under California law, and grant the present motion.
3 II. BACKGROUND
4 This case arises from a systematic practice through which Defendants treat the individuals
5 who provide cleaning services as independent contractors as opposed to employees. By classifying
6 Cleaners as independent contractors, Vanguard Cleaning Systems, Inc. (“VCS”) and its Regional
7 Franchises 2 have avoided their obligations under California’s labor protection laws.
8 A. Specific Allegations in the Initial and Amended Complaints
9 The essential allegations in the Second Amended Complaint, the First Amended
10 Complaint, and the original Complaint are the same.
11 Plaintiffs have all worked as Cleaners for Vanguard, and like all other Vanguard California
12 Cleaners, they were classified as independent contractors and bought their jobs by paying a
13 franchise fee and signing unit franchise agreements with VCS or Regional Franchises Wine
14 Country Ventures, Inc. (“WCV”), RR Franchising, Inc. (“RR Franchising”), and Buddha Capital
15 Corporation, respectively (“Buddha”) (collectively, the “Regional Franchises”). The Regional
16 Franchises, in turn, sign master franchise agreements with top-tier franchisor VCS to create a
17 three-tier franchise commercial cleaning business entirely reliant on the labor of Plaintiffs and
18 other Cleaners.
19 By classifying Cleaners as independent contractors, Vanguard has avoided various
20 obligations under California’s labor protection laws. Cleaners have been denied reimbursement
21 for necessary expenses and deductions they have incurred, and they have not been issued compliant
22 wage statements. Cleaners are also owed statutory penalties for these violations.
23 Plaintiffs also asserted claims for meal and rest period violations, for unpaid overtime
24 premiums, and for failure to pay all wages due. In the initial complaint and the first amended
25 complaint, those claims were asserted on a class basis. However, following this Court denying
26 Plaintiffs’ initial class certification motion without prejudice, Plaintiffs no longer assert those
27
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VCS and the Regional Franchises are collectively referred to as “Vanguard.”
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 2
1 causes of action on a class basis, but only individually. Accordingly, the proposed Second
2 Amended Complaint clarifies which claims are being asserted on a class or individual basis.
3 B. Proposed Amendments
4 The proposed amendments do not change the existing claims. The principal changes are
5 to: (1) add two Named Plaintiffs (Georgina Tello and Ryne Bass) who are subject to arbitration
6 clauses; and (2) clarify which claims are being asserted on a class or individual basis. (See Brome
7 Dec. Ex. 2.) Each of these proposed changes are appropriate.
8 First, adding two Named Plaintiffs is appropriate to ensure that absent class members who
9 are subject to arbitration provisions have an opportunity to remain in the class. To the extent
10 Defendants pursue arbitration defenses, Plaintiffs seek to challenge whether the arbitration clauses
11 are enforceable. Because the original Named Plaintiffs are not subject to arbitration clauses, the
12 Court determined they were not suited to contest the enforceability of those clauses. Accordingly,
13 it is appropriate to allow new named plaintiffs to join the case to pursue this argument and represent
14 the absent class members. Jaimez v. Daiohs USA, Inc. (2010) 181 Cal. App. 4th 1286, 1308 (leave
15 to amend should have been granted where “the Class presented two new class representatives (in
16 direct response to the trial court’s concern regarding the adequacy of Jaimez as a class
17 representative)”).
18 Second, the housekeeping revisions regarding which claims are proceeding on a class basis
19 simply conform the pleadings to reflect litigation developments, without actually changing the
20 case.
21 C. Efforts to Meet and Confer
22 The hearing on Plaintiffs’ renewed motion for class certification was held on Tuesday,
23 March 28, 2023. The following Monday, April 3, 2023, Plaintiffs provided a copy of the proposed
24 amended complaint to Defendants, and asked if Defendants would stipulate to the amendment.
25 (Brome Dec. ¶ 2.) Plaintiffs informed Defendants of their intention to file a motion on April 6,
26 2023 if Defendants did not respond. (Id.)
27 Counsel for VCS responded that evening, stating that VCS would need additional time to
28 consider. (Brome Dec. ¶ 3.) VCS did not state how long they would need, or what information
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 3
1 they needed to gather or consider in order to make their decision. (Id.) Plaintiffs’ Counsel replied
2 the next morning, asking what information VCS needed, and whether it needed information from
3 the Plaintiffs. (Id.) Counsel for VCS did not respond to that email. (Id.)
4 On Thursday, April 6, 2023, Counsel for the Regional Franchise Defendants responded,
5 stating they were “not yet in a position to respond,” and that they anticipated being able to answer
6 by Tuesday, April 11. (Brome Dec. ¶ 4.) Plaintiffs’ Counsel replied, stating that Plaintiffs were
7 willing to wait until Tuesday if both the Regional Franchises and VCS would commit to providing
8 an answer by noon on that day. (Id.) As of 3:30 p.m., neither VCS’s counsel nor the Regional
9 Franchises’ counsel had responded to this request. (Id.)
10 III. ARGUMENT
11 A. Leave to Amend Should Be Liberally Granted
12 “The court may, in the furtherance of justice, and on any terms as may be proper, allow a
13 party to amend any pleading…” C.C.P. §473(a)(1). Under this rule, amendments to pleadings are
14 liberally allowed. Bd. of Trustees v. Superior Court (2007) 149 Cal. App. 4th 1154, 1163 (“It is
15 well established that California courts have a policy of great liberality in allowing amendments at
16 any stage of the proceeding …. Indeed, it is a rare case in which a court will be justified in refusing
17 a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her]
18 case.”) (quotations and citations omitted).
19 Amendment is permitted at any stage as long as defendants are not prejudiced, the amended
20 pleading does not substantially change the issues to be decided, and the amendment will not cause
21 further delay in resolving the case. Keeble v. Brown (1954) 123 Cal. App. 2d 126, 129–30.
22 California’s policy of granting leave to amend with great liberality is well-established, and the
23 main principles have been in place for close to a hundred years. See Klopstock v. Superior
24 Court (1941) 17 Cal.2d 13, 19 (“This statutory provision giving the courts the power to permit
25 amendments in furtherance of justice has received a very liberal interpretation by the courts of this
26 state.”); Hanna v. Hirschhorn (1931) 112 Cal. App. 438, 440 (court is rarely justified in refusing
27 leave to amend where “a proposed amendment will not radically change the issues originally
28 presented in the action, and will neither work great delay nor prejudice rights of the adverse party
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 4
1 to the action”).
2 Here, the proposed amendments will not “radically” change the issues (indeed, they will
3 not change the issues at all), will not delay the proceedings, and will not prejudice Defendants.
4 Plaintiffs respectfully request that the Court grant their motion to amend.
5 B. The Criteria for Amending the Complaint Are Satisfied
6 Amendment in conjunction with class certification for purposes of finding a suitable class
7 representative is appropriate. Jaimez, 181 Cal. App. 4th at 1308. Here, given that the arbitration
8 clauses at issue are consistent, it is appropriate to add two new Named Plaintiffs who can challenge
9 those clauses for absent class member cleaners who are subject to arbitration clauses.
10 The proposed amendments will not change the issues. Adding Named Plaintiffs who are
11 subject to arbitration clauses does not change the claims in the case. Plaintiffs still seek
12 reimbursement for improper deductions and for required expenses, and penalties for failure to
13 provide wage statements. Nor does adding these Plaintiffs change the scope of issues in this case—
14 Plaintiffs have consistently argued that the arbitration clauses would be challenged and that the
15 classes should be certified including Cleaners who were subject to such clauses. (See Brome Dec.
16 Ex. 3, Plaintiffs’ Reply in Support of Initial Motion for Class Certification, filed July 6, 2022, at
17 16–18). Accordingly, the first criterion for amendment is satisfied.
18 Because the central allegations and claims remain the same, the proposed amendments will
19 not delay the case. The Court has not set a trial date, a deadline for dispositive motions, or a date
20 to complete discovery. (Brome Dec. ¶ 5.) While this amendment will lead to a new round of class
21 certification briefing, this can be done on a much more streamlined path, since the parties have
22 already briefed the issues twice, the claims at issue have been significantly narrowed, and the Court
23 has already indicated its intentions in a detailed tentative ruling.
24 Finally, the proposed amendments will not prejudice Defendants. Generally, there is no
25 prejudice where the amendment is not a surprise to the defendant. See Mesler v. Bragg
26 Management Co. (1985) 39 Cal.3d 290, 297. Here, Defendants were on notice as early as last
27 summer that that Plaintiffs intended to include Cleaners subject to arbitration provisions in the
28 class, and would seek leave to amend the Complaint if required to do so. (Brome Dec. Ex. 3 at 17
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 5
1 – 18 (“the Court can always allow leave for Plaintiffs to amend the complaint to add an additional
2 class representative who is party to an arbitration agreement if the Court determines that would be
3 preferable.”). Plaintiffs reiterated this position in the reply brief on the renewed class certification
4 motion. Defendants cannot claim to be surprised by the proposed amendment.
5 IV. CONCLUSION
6 For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion
7 to amend, and allow them to file their Second Amended Complaint (attached as Exhibit 1 to the
8 Brome Declaration).
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Dated: April 19, 2023 NICHOLS KASTER, LLP
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13 By:/s/ Daniel S. Brome
Matthew C. Helland
14 Daniel S. Brome
15 Dated: April 19, 2023 RUKIN HYLAND & RIGGIN LLP
16 By:/s/ Jessica Riggin
Jessica Riggin
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Attorneys for Plaintiffs
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NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 6
Preview
1 JESSICA RIGGIN (SBN 281712) jriggin@rukinhyland.com 2 RUKIN HYLAND & RIGGIN LLP 1939 Harrison Street, Suite 925 3 Oakland, CA 94612 4 Telephone: (415) 421-1800 Facsimile: (415) 421-1700 5 MATTHEW C. HELLAND (SBN 250451) 6 helland@nka.com DANIEL BROME (SBN 278915) 7 dbrome@nka.com NICHOLS KASTER, LLP 8 235 Montgomery Street, Suite 810 San Francisco, CA 94104 9 Telephone: (415) 277-7235 Facsimile: (415) 277-7238 10 Attorneys for Plaintiffs 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 ALIDA MAZARIEGOS, PAULA CASE NO.: 20-CIV-04267 14 GONZALEZ, and JAIME AMAYA PLAINTIFFS’ NOTICE OF MOTION 15 AND MOTION FOR LEAVE TO FILE Plaintiffs, on behalf of themselves 16 and all others similarly situated, SECOND AMENDED COMPLAINT 17 v. Judge: Hon. Nancy L. Fineman VANGUARD CLEANING SYSTEMS, Dept.: 04 18 Date: June 7, 2023 INC.; RR FRANCHISING, INC., D/B/A VANGUARD CLEANING SYSTEMS OF Time: 2:00 p.m. 19 SOUTHERN CALIFORNIA AND D/B/A 20 VANGUARD CLEANING SYSTEMS OF NORTHERN CALIFORNIA; BUDDHA 21 CAPITAL CORPORATION, D/B/A 22 VANGUARD CLEANING SYSTEMS OF SACRAMENTO, D/B/A VANGUARD 23 CLEANING SYSTEMS OF THE CENTRAL VALLEY, AND D/B/A 24 VANGUARD CLEANING SYSTEMS OF THE CENTRAL COAST; AND WINE 25 COUNTRY VENTURES, INC. D/B/A 26 VANGUARD CLEANING SYSTEMS OF THE NORTH BAY, AND DOES 1 27 THROUGH 10, INCLUSIVE, 28 Defendants. NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 1 TABLE OF CONTENTS 2 I. INTRODUCTION ............................................................................................................... 1 3 II. BACKGROUND ................................................................................................................. 2 4 A. Specific Allegations in the Initial and Amended Complaints ................................. 2 5 B. Proposed Amendments ............................................................................................ 3 6 C. Efforts to Meet and Confer...................................................................................... 3 7 8 III. ARGUMENT ...................................................................................................................... 4 9 A. Leave to Amend Should Be Liberally Granted ....................................................... 4 10 B. The Criteria for Amending the Complaint Are Satisfied ........................................ 5 11 III. CONCLUSION ................................................................................................................... 6 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT i TABLE OF AUTHORITIES 1 Page(s) 2 Cases 3 Bd. of Trustees v. Superior Court (2007) 149 Cal. App. 4th 1154 ................................................. 6 4 Hanna v. Hirschhorn (1931) 112 Cal. App. 438 ............................................................................. 6 5 Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213 .......................... 3 6 Jaimez v. Daiohs USA, Inc. (2010) 181 Cal. App. 4th 1286 ....................................................... 5, 7 7 Keeble v. Brown (1954) 123 Cal. App. 2d 126 ............................................................................... 6 8 Klopstock v. Superior Court (1941) 17 Cal.2d 13........................................................................... 6 9 Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290 ............................................................... 7 10 Sky Sports, Inc. v. Superior Court (2011) 201 Cal.App.4th 1363 ................................................... 3 11 Statutes 12 C.C.P. §473(a)(1) ............................................................................................................................ 6 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT ii 1 NOTICE OF MOTION AND MOTION 2 TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on May 2, 2023, at 2:00 p.m., or as soon thereafter as this matter 4 may be heard in the courtroom of the Honorable Nancy L. Fineman, in Department 4 of the 5 Superior Court of California for the County of San Mateo, Plaintiffs will and hereby do move the 6 Court for an order permitting the filing of the Second Amended Complaint attached as Exhibit 1 7 to the accompanying Declaration of Daniel Brome (“Brome Declaration”). 1 8 This motion is made pursuant to discussions with the Court at the most recent hearing on 9 Plaintiffs’ Renewed Motion for Class Certification, held on March 28, 2023, and is based on C.C.P. 10 § 473(a)(1) and the authorities cited in Plaintiffs’ accompanying Memorandum of Points and 11 Authorities (“Memorandum”). In support of the motion, Plaintiffs rely on their Memorandum, the 12 Brome Declaration and exhibits thereto, and all files, records, and proceedings in this matter. 13 14 Dated: April 19, 2023 NICHOLS KASTER, LLP 15 By: /s/ Daniel S. Brome 16 Matthew C. Helland Daniel S. Brome 17 Dated: April 19, 2023 RUKIN HYLAND & RIGGIN LLP 18 By: /s/ Jessica Riggin 19 Jessica Riggin Attorneys for Plaintiffs 20 21 22 23 24 25 26 27 1 A redline version showing the proposed amendments is attached as Exhibit 2 to the Brome 28 Declaration. NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT iii 1 I. INTRODUCTION 2 Plaintiffs bring the present motion to amend to add Named Plaintiffs whose contracts 3 include arbitration agreements, and to clarify which claims are being pursued on a class basis or 4 an individual basis. These changes stem from concerns raised by the Court in response to Plaintiffs’ 5 initial and renewed class certification motions. 6 The original Named Plaintiffs (Alida Mazariegos, Jaime Amaya, and Paula Gonzalez) are 7 not subject to arbitration agreements. Plaintiffs sought to certify a class that included cleaners with 8 and without arbitration agreements. In its tentative ruling, the Court found “that Plaintiffs, who do 9 not have arbitration clauses, do not have standing to represent putative class members who do have 10 arbitration clauses.” As discussed during the recent hearing on Plaintiffs’ Renewed Motion for 11 Class Certification, on March 28, 2023, rather than exclude those cleaners who have arbitration 12 clauses from a certified class, Plaintiffs seek to amend to add Named Plaintiffs who do have 13 arbitration clauses. 14 Additionally, the proposed amendments clarify that Plaintiffs are pursuing claims One 15 (expense reimbursement), Two (unlawful withholding and receipt of earned wages), Six (failure 16 to provide accurate wage statements), and Eight (unfair competition) on a class basis; Plaintiffs no 17 will not seek certification of claims Three (meal periods), Four (failure to authorize and permit 18 rest periods), Five (overtime compensation), or Seven (waiting time penalties), although the 19 Named Plaintiffs continue to pursue those claims on an individual basis. 20 The proposed amendments do not seek to expand the existing claims, and come as no 21 surprise to Defendants, as Defendants have known since at least July 6, 2022 (when Plaintiffs filed 22 their Reply in support of the initial class certification motion) that Plaintiffs sought to represent 23 cleaners who were subject to arbitration clauses, and would seek leave to amend in order to do so 24 if necessary. Plaintiffs specifically argued that class certification motion was not the place to 25 exclude individuals who were subject to arbitration agreements, but that Defendants would be free 26 to file a motion to compel arbitration after class certification. See Hendershot v. Ready to Roll 27 Transportation, Inc. (2014) 228 Cal.App.4th 1213, 1223–24, n. 7 (citing Sky Sports, Inc. v. 28 Superior Court (2011) 201 Cal.App.4th 1363). NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 1 1 Accordingly, Plaintiffs respectfully request that the Court permit the proposed 2 amendments, which are liberally allowed under California law, and grant the present motion. 3 II. BACKGROUND 4 This case arises from a systematic practice through which Defendants treat the individuals 5 who provide cleaning services as independent contractors as opposed to employees. By classifying 6 Cleaners as independent contractors, Vanguard Cleaning Systems, Inc. (“VCS”) and its Regional 7 Franchises 2 have avoided their obligations under California’s labor protection laws. 8 A. Specific Allegations in the Initial and Amended Complaints 9 The essential allegations in the Second Amended Complaint, the First Amended 10 Complaint, and the original Complaint are the same. 11 Plaintiffs have all worked as Cleaners for Vanguard, and like all other Vanguard California 12 Cleaners, they were classified as independent contractors and bought their jobs by paying a 13 franchise fee and signing unit franchise agreements with VCS or Regional Franchises Wine 14 Country Ventures, Inc. (“WCV”), RR Franchising, Inc. (“RR Franchising”), and Buddha Capital 15 Corporation, respectively (“Buddha”) (collectively, the “Regional Franchises”). The Regional 16 Franchises, in turn, sign master franchise agreements with top-tier franchisor VCS to create a 17 three-tier franchise commercial cleaning business entirely reliant on the labor of Plaintiffs and 18 other Cleaners. 19 By classifying Cleaners as independent contractors, Vanguard has avoided various 20 obligations under California’s labor protection laws. Cleaners have been denied reimbursement 21 for necessary expenses and deductions they have incurred, and they have not been issued compliant 22 wage statements. Cleaners are also owed statutory penalties for these violations. 23 Plaintiffs also asserted claims for meal and rest period violations, for unpaid overtime 24 premiums, and for failure to pay all wages due. In the initial complaint and the first amended 25 complaint, those claims were asserted on a class basis. However, following this Court denying 26 Plaintiffs’ initial class certification motion without prejudice, Plaintiffs no longer assert those 27 28 2 VCS and the Regional Franchises are collectively referred to as “Vanguard.” NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 2 1 causes of action on a class basis, but only individually. Accordingly, the proposed Second 2 Amended Complaint clarifies which claims are being asserted on a class or individual basis. 3 B. Proposed Amendments 4 The proposed amendments do not change the existing claims. The principal changes are 5 to: (1) add two Named Plaintiffs (Georgina Tello and Ryne Bass) who are subject to arbitration 6 clauses; and (2) clarify which claims are being asserted on a class or individual basis. (See Brome 7 Dec. Ex. 2.) Each of these proposed changes are appropriate. 8 First, adding two Named Plaintiffs is appropriate to ensure that absent class members who 9 are subject to arbitration provisions have an opportunity to remain in the class. To the extent 10 Defendants pursue arbitration defenses, Plaintiffs seek to challenge whether the arbitration clauses 11 are enforceable. Because the original Named Plaintiffs are not subject to arbitration clauses, the 12 Court determined they were not suited to contest the enforceability of those clauses. Accordingly, 13 it is appropriate to allow new named plaintiffs to join the case to pursue this argument and represent 14 the absent class members. Jaimez v. Daiohs USA, Inc. (2010) 181 Cal. App. 4th 1286, 1308 (leave 15 to amend should have been granted where “the Class presented two new class representatives (in 16 direct response to the trial court’s concern regarding the adequacy of Jaimez as a class 17 representative)”). 18 Second, the housekeeping revisions regarding which claims are proceeding on a class basis 19 simply conform the pleadings to reflect litigation developments, without actually changing the 20 case. 21 C. Efforts to Meet and Confer 22 The hearing on Plaintiffs’ renewed motion for class certification was held on Tuesday, 23 March 28, 2023. The following Monday, April 3, 2023, Plaintiffs provided a copy of the proposed 24 amended complaint to Defendants, and asked if Defendants would stipulate to the amendment. 25 (Brome Dec. ¶ 2.) Plaintiffs informed Defendants of their intention to file a motion on April 6, 26 2023 if Defendants did not respond. (Id.) 27 Counsel for VCS responded that evening, stating that VCS would need additional time to 28 consider. (Brome Dec. ¶ 3.) VCS did not state how long they would need, or what information NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 3 1 they needed to gather or consider in order to make their decision. (Id.) Plaintiffs’ Counsel replied 2 the next morning, asking what information VCS needed, and whether it needed information from 3 the Plaintiffs. (Id.) Counsel for VCS did not respond to that email. (Id.) 4 On Thursday, April 6, 2023, Counsel for the Regional Franchise Defendants responded, 5 stating they were “not yet in a position to respond,” and that they anticipated being able to answer 6 by Tuesday, April 11. (Brome Dec. ¶ 4.) Plaintiffs’ Counsel replied, stating that Plaintiffs were 7 willing to wait until Tuesday if both the Regional Franchises and VCS would commit to providing 8 an answer by noon on that day. (Id.) As of 3:30 p.m., neither VCS’s counsel nor the Regional 9 Franchises’ counsel had responded to this request. (Id.) 10 III. ARGUMENT 11 A. Leave to Amend Should Be Liberally Granted 12 “The court may, in the furtherance of justice, and on any terms as may be proper, allow a 13 party to amend any pleading…” C.C.P. §473(a)(1). Under this rule, amendments to pleadings are 14 liberally allowed. Bd. of Trustees v. Superior Court (2007) 149 Cal. App. 4th 1154, 1163 (“It is 15 well established that California courts have a policy of great liberality in allowing amendments at 16 any stage of the proceeding …. Indeed, it is a rare case in which a court will be justified in refusing 17 a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] 18 case.”) (quotations and citations omitted). 19 Amendment is permitted at any stage as long as defendants are not prejudiced, the amended 20 pleading does not substantially change the issues to be decided, and the amendment will not cause 21 further delay in resolving the case. Keeble v. Brown (1954) 123 Cal. App. 2d 126, 129–30. 22 California’s policy of granting leave to amend with great liberality is well-established, and the 23 main principles have been in place for close to a hundred years. See Klopstock v. Superior 24 Court (1941) 17 Cal.2d 13, 19 (“This statutory provision giving the courts the power to permit 25 amendments in furtherance of justice has received a very liberal interpretation by the courts of this 26 state.”); Hanna v. Hirschhorn (1931) 112 Cal. App. 438, 440 (court is rarely justified in refusing 27 leave to amend where “a proposed amendment will not radically change the issues originally 28 presented in the action, and will neither work great delay nor prejudice rights of the adverse party NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 4 1 to the action”). 2 Here, the proposed amendments will not “radically” change the issues (indeed, they will 3 not change the issues at all), will not delay the proceedings, and will not prejudice Defendants. 4 Plaintiffs respectfully request that the Court grant their motion to amend. 5 B. The Criteria for Amending the Complaint Are Satisfied 6 Amendment in conjunction with class certification for purposes of finding a suitable class 7 representative is appropriate. Jaimez, 181 Cal. App. 4th at 1308. Here, given that the arbitration 8 clauses at issue are consistent, it is appropriate to add two new Named Plaintiffs who can challenge 9 those clauses for absent class member cleaners who are subject to arbitration clauses. 10 The proposed amendments will not change the issues. Adding Named Plaintiffs who are 11 subject to arbitration clauses does not change the claims in the case. Plaintiffs still seek 12 reimbursement for improper deductions and for required expenses, and penalties for failure to 13 provide wage statements. Nor does adding these Plaintiffs change the scope of issues in this case— 14 Plaintiffs have consistently argued that the arbitration clauses would be challenged and that the 15 classes should be certified including Cleaners who were subject to such clauses. (See Brome Dec. 16 Ex. 3, Plaintiffs’ Reply in Support of Initial Motion for Class Certification, filed July 6, 2022, at 17 16–18). Accordingly, the first criterion for amendment is satisfied. 18 Because the central allegations and claims remain the same, the proposed amendments will 19 not delay the case. The Court has not set a trial date, a deadline for dispositive motions, or a date 20 to complete discovery. (Brome Dec. ¶ 5.) While this amendment will lead to a new round of class 21 certification briefing, this can be done on a much more streamlined path, since the parties have 22 already briefed the issues twice, the claims at issue have been significantly narrowed, and the Court 23 has already indicated its intentions in a detailed tentative ruling. 24 Finally, the proposed amendments will not prejudice Defendants. Generally, there is no 25 prejudice where the amendment is not a surprise to the defendant. See Mesler v. Bragg 26 Management Co. (1985) 39 Cal.3d 290, 297. Here, Defendants were on notice as early as last 27 summer that that Plaintiffs intended to include Cleaners subject to arbitration provisions in the 28 class, and would seek leave to amend the Complaint if required to do so. (Brome Dec. Ex. 3 at 17 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 5 1 – 18 (“the Court can always allow leave for Plaintiffs to amend the complaint to add an additional 2 class representative who is party to an arbitration agreement if the Court determines that would be 3 preferable.”). Plaintiffs reiterated this position in the reply brief on the renewed class certification 4 motion. Defendants cannot claim to be surprised by the proposed amendment. 5 IV. CONCLUSION 6 For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion 7 to amend, and allow them to file their Second Amended Complaint (attached as Exhibit 1 to the 8 Brome Declaration). 9 10 11 Dated: April 19, 2023 NICHOLS KASTER, LLP 12 13 By:/s/ Daniel S. Brome Matthew C. Helland 14 Daniel S. Brome 15 Dated: April 19, 2023 RUKIN HYLAND & RIGGIN LLP 16 By:/s/ Jessica Riggin Jessica Riggin 17 Attorneys for Plaintiffs 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 6