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1 BLUMENTHAL NORDREHAUG BHOWMIK
DE BLOUW LLP
2 Norman B. Blumenthal (State Bar #068687)
3 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
4 Christine T. LeVu (State Bar #288271)
Andrew Ronan (State Bar #312316)
5 2255 Calle Clara
La Jolla, CA 92037
6
Telephone: (858)551-1223
7 Facsimile: (858) 551-1232
8 Attorneys for Plaintiff PRECIOUS CHATMAN
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SAN MATEO
11
PRECIOUS CHATMAN, an individual, on Case No. 22-CIV-02197
12
behalf of herself and on behalf of all persons
13 similarly situated, CLASS ACTION
14 Plaintiff,
PLAINTIFF’S REPLY TO OPPOSITION
15 vs. TO MOTION FOR LEAVE TO FILE
FIRST AMENDED CLASS ACTION
16 COMPLAINT
WEDRIVEU, INC., a California Corporation;
17 and DOES 1 through 50, inclusive,
[CCP §473]
18 Defendants. Hearing Date: December 22, 2023
19 Hearing Time: 2:00 p.m.
Dept.: 21
20 Judge: Hon. Robert D. Foiles
21
[Filed Concurrently with Plaintiff’s Motion for
22 Leave to Be Relieved as Counsel]
23 Action Filed: June 2, 2022
24
25
26
27
28
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION
COMPLAINT.
1 I. INTRODUCTION
2 Permitting an amendment here would not be futile. Defendant’s Opposition fails to address any
3 prejudice to Defendant if leave is granted and ANTONIO BUSH (“Plaintiff Bush”), who is already a
4 CLASS MEMBER, replaces Plaintiff PRECIOUS CHATMAN (“Plaintiff Chatman”.)
5 Defendant WEDRIVEU, INC’s (“Defendant”) Opposition further fails to cite to even one case
6 that provides that an amendment to replace a class representative is improper or was not granted.
7 Defendant’s Opposition cites to Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal. App. 3d 781,
8 for the proposition that leave to amend should not be granted in this case. Plant Insulation however
9 addresses how abatement relates only to a second filed action, not a first filed action. This Action was
10 filed nearly a year prior to the second action, Bush v. WeDriveU, Inc., No. 23-CIV-01872 (“Second Filed
11 Action”). If leave is granted in this Action, Defendant could exercise its right to file a motion for judgment
12 on the pleading (“MJOP”) in the second action, Bush v. WeDriveU, Inc., No. 23-CIV-01872 (“Second
13 Filed Action”) to assert plea in abatement and/or exclusive concurrent jurisdiction. Defendant’s argument
14 that plea in abatement or exclusive concurrent jurisdiction bars the filing to add Plaintiff Bush is baseless.
15 Defendant here fails to cite any case law which would prevent an amendment to a first filed case.
16 Amendment in this case would under no circumstance give rise to a demurrer in this action. Accordingly,
17 the Plaintiff’s request for leave to file a First Amended Class Action Complaint should liberally granted
18 consistent with California law.
19 II. ARGUMENT
20 A. Abatement Is Not Applicable as It ONLY Applies to a Second Filed Action.
21 The pendency of another action growing out of the same transaction is a ground for abatement of
22 the second action but never for abatement of the first. (California Union Ins. Co. v. Trinity River Land Co.
23 (1980) 105 Cal. App. 3d 104, 106.) The theory underlying this defense is that because the first action will
24 normally provide an adequate remedy the second action is unnecessary and vexatious. (California Union
25 Ins. Co. v. Trinity River Land Co. (1980) 105 Cal. App. 3d 104, 109; Fresno Planing Mill Co. v. Manning
26 (1912) 20 Cal.App. 766, 769 ["if the first suit affords an ample remedy to the party claiming to be
27 aggrieved, it would be not only unnecessary but vexatious to permit the prosecution of a second suit
28 founded upon the same cause of action"].)
2
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION
COMPLAINT
1
2 The plea in abatement is successful only if it can be shown that both suits are predicated upon the
3 same cause of action, both suits are pending in the same jurisdiction, and both suits are contested by the
4 same parties. (Conservatorship of Pacheco (1990) 224, Cal. App. 3d 171, 176). The plea in abatement is
5 essentially a request not that an action be terminated, but that it be continued until such time as there has
6 been a disposition of the first action. (Shuffer v. Board of Trustees (1977) 67 Ca. App. 3d 208, 217.) If
7 these requirements are met, abatement of the second-filed action is mandatory. (Lawyers Title Ins. Corp.
8 v. Superior Court (1984) 151 Cal.App.3d 455, 460.) Sustaining a demurrer on these grounds only abates,
9 but does not terminate, the action. (Western Pipe & Steel Co. v. Tuolumne Gold Dredging Corp. (1944),
10 63 Cal.App.2d 21, 24.)
11 Defendant’s argument that abatement precludes the amendment in this Action is baseless. Plaintiff
12 Bush filed the Second Filed Action on April 24, 2023. (Exhibit 9 to Request for Judicial Notice in support
13 of Reply.) This Action was filed almost a year earlier on June 2, 2022. (Exhibit 3 to the Declaration of
14 Christine LeVu in Support of the Motion for Leave to First Amended Class Action Compliant (“LeVu
15 Decl.”).) Accordingly, Defendant’s argument that amendment would be futile is without merit because
16 this Action was filed before the Second Filed Action. Moreover, there will be no prejudice to Defendant
17 as Plaintiff Bush intends to dismiss the Second Filed Acton if leave to amend in this Action is granted.
18 Abatement is not and cannot be a challenge to this Motion.
19 B. The Defense of Concurrent Jurisdiction Applies ONLY to A Second Filed Action, Not
20 the First.
21 This rule is a judicial policy that mandates the second action to be stayed upon the filing of an
22 appropriate pleading. (BBBB Bonding Corp. v. Caldwell (2021) 73 Cal. App. 5th 349, 374.) The rule is
23 based on the principle that when two courts have concurrent jurisdiction over the same parties and subject
24 matter, the court that first assumes jurisdiction retains it exclusively. (In re Marriage of Thompson (2022)
25 74 Cal. App. 5th 481, 487.) This rule does not require absolute identity of parties and causes of action in
26 the initial and subsequent actions. (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.
27 App. 4th 760, 770.) Therefore, in California, the defense of concurrent jurisdiction applies to the second
28 filed action, not the first.
3
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION
COMPLAINT
1 Notably, this Action and the Second Filed Action are both venued in San Mateo Superior Court
2 and therefore, this Court has jurisdiction over both cases. Nevertheless, for the reasons that plea and
3 abatement does not apply to the facts of this case, concurrent jurisdiction also does not bar the filing of an
4 amended complaint. Plaintiff therefore incorporates by reference the arguments set forth in section II(A)
5 of this Reply.
6 C. Plaintiff Must Be Afforded an Opportunity to Name a Suitable Class Representative.
7 Providing an opportunity to amend makes sense when a named plaintiff is disqualified as a result
8 of a defense strategy to defeat a class action by offering individual relief. Without such an opportunity,
9 defendants could manipulate the class action procedure to avoid class claims. (See Larner v. Los
10 Angeles Doctors Hospital Associates, LP (2008) 168 Cal.App.4th 1291, 1299 [“the rule permitting
11 amendment to substitute a new class representative ‘prevents a prospective defendant from avoiding a
12 class action by ‘picking off’ prospective class action plaintiffs one by one, settling each individual claim
13 in an attempt to disqualify the named plaintiff as a class representative’].)
14 Given that Plaintiff has filed, concurrently with this Motion, a Motion to be Relieved of Counsel,
15 the class must be represented by adequate class counsel and therefore, this Court consistent with Jones
16 should permit Plaintiff leave to amend the complaint to name a suitable class representative. As the Court
17 may recall, Defendant by its own admission contends that the Class must be represented by Counsel
18 (Exhibit 4, LeVu Decl., ¶12). Plaintiff Bush is an adequate class representative and willing to represent
19 the class, which abates Defendant’s concern of no counsel for the Class.
20 Last, to the extent Defendant attempts to argue that Plaintiff Bush is not an adequate class
21 representative because he has a separate class action against the same defendant pending in San Mateo
22 entitled Bush v. WeDriveU, Inc. (Case No. 23-CIV-01872) (“Bush Class Action”), this is of no
23 consequence. As relayed to Judge Foils, once the FAC adding Plaintiff Bush to this Action is filed,
24 Plaintiff Bush will immediately dismiss the Bush Class Action. (LeVu Decl., ¶ 20.) That said, any
25 challenge to the substance of the FAC should be brought on Demurrer and is not proper on a Motion for
26 Leave.
27 D. Substitution of a New Class Representative Does Not Require Lack of Standing of the
28 Replaced Class Representative.
4
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION
COMPLAINT
1 Defendant misquotes the opinion in Branick v. Downey Savings & Loan Assn., 39 Cal. 4th 235,
2 243. Defendant’s Opposition reads:
3 While courts permit an amendment to substitute a new plaintiff under the relation back
doctrine, the prior plaintiff “must have been determine to lack standing or [] have lost
4 standing after the complaint was filed.”
5 (Defendant’s Opposition for Motion for Leave to File First Amended Class Action Complaint (“Oppo.”),
6 5:8-11, emphasis added.) Nowhere does the opinion in Branick v. Downey Savings & Loan Assn read
7 Defendant’s quote “the prior plaintiff ‘must have been determined to lack standing” as Defendant
8 misrepresents to this Court. Whether intentional or not this is direct misquotation of the Court.
9 Instead, the cited portion of Branick v. Downey Savings & Loan Assn reads as follows:
10 Defendants argue plaintiffs should not be permitted to substitute a new plaintiff because
their failure to name the new plaintiff in their original complaint was not a mistake. No
11 such rule exists. To the contrary, courts have permitted plaintiffs who have been
determined to lack standing, or who have lost standing after the complaint was filed,
12 to substitute as plaintiffs the true real parties in interest.
13
Branick v. Downey Savings & Loan Assn. (2006) 39 Cal. 4th 235, 243. Defendant here misquotes and
14
misstates the law. Branick v. Downey Savings & Loan Assn was not a class action and addressed different
15
legal obligations, which does not exist here. Defendant here fails to cite to any case that requires a class
16
representative to lose standing before a substitution of a new class representative.
17
III. CONCLUSION
18
Based upon the foregoing, Plaintiff respectfully requests the Court grant leave to amend the
19
complaint and file the First Amended Class Action Complaint as the doctrine of plea in abatement and
20
exclusive concurrent jurisdiction are inapplicable here. Moreover, Defendant has failed to establish any
21
prejudice if leave is granted and has failed to cite to any case law for the proposition that Plaintiff can only
22
substitute a new class representative when the current class representative has lost standing.
23
24
DATED: December 1, 2023 BLUMENTHAL NORDREHAUG BHOWMIK DE
25 BLOUW LLP
26
By:
27
Christine T. LeVu
28 Attorneys for Plaintiff
5
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION
COMPLAINT
Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2 Norman B. Blumenthal (State Bar #068687) 3 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 4 Christine T. LeVu (State Bar #288271) Andrew Ronan (State Bar #312316) 5 2255 Calle Clara La Jolla, CA 92037 6 Telephone: (858)551-1223 7 Facsimile: (858) 551-1232 8 Attorneys for Plaintiff PRECIOUS CHATMAN 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SAN MATEO 11 PRECIOUS CHATMAN, an individual, on Case No. 22-CIV-02197 12 behalf of herself and on behalf of all persons 13 similarly situated, CLASS ACTION 14 Plaintiff, PLAINTIFF’S REPLY TO OPPOSITION 15 vs. TO MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION 16 COMPLAINT WEDRIVEU, INC., a California Corporation; 17 and DOES 1 through 50, inclusive, [CCP §473] 18 Defendants. Hearing Date: December 22, 2023 19 Hearing Time: 2:00 p.m. Dept.: 21 20 Judge: Hon. Robert D. Foiles 21 [Filed Concurrently with Plaintiff’s Motion for 22 Leave to Be Relieved as Counsel] 23 Action Filed: June 2, 2022 24 25 26 27 28 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT. 1 I. INTRODUCTION 2 Permitting an amendment here would not be futile. Defendant’s Opposition fails to address any 3 prejudice to Defendant if leave is granted and ANTONIO BUSH (“Plaintiff Bush”), who is already a 4 CLASS MEMBER, replaces Plaintiff PRECIOUS CHATMAN (“Plaintiff Chatman”.) 5 Defendant WEDRIVEU, INC’s (“Defendant”) Opposition further fails to cite to even one case 6 that provides that an amendment to replace a class representative is improper or was not granted. 7 Defendant’s Opposition cites to Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal. App. 3d 781, 8 for the proposition that leave to amend should not be granted in this case. Plant Insulation however 9 addresses how abatement relates only to a second filed action, not a first filed action. This Action was 10 filed nearly a year prior to the second action, Bush v. WeDriveU, Inc., No. 23-CIV-01872 (“Second Filed 11 Action”). If leave is granted in this Action, Defendant could exercise its right to file a motion for judgment 12 on the pleading (“MJOP”) in the second action, Bush v. WeDriveU, Inc., No. 23-CIV-01872 (“Second 13 Filed Action”) to assert plea in abatement and/or exclusive concurrent jurisdiction. Defendant’s argument 14 that plea in abatement or exclusive concurrent jurisdiction bars the filing to add Plaintiff Bush is baseless. 15 Defendant here fails to cite any case law which would prevent an amendment to a first filed case. 16 Amendment in this case would under no circumstance give rise to a demurrer in this action. Accordingly, 17 the Plaintiff’s request for leave to file a First Amended Class Action Complaint should liberally granted 18 consistent with California law. 19 II. ARGUMENT 20 A. Abatement Is Not Applicable as It ONLY Applies to a Second Filed Action. 21 The pendency of another action growing out of the same transaction is a ground for abatement of 22 the second action but never for abatement of the first. (California Union Ins. Co. v. Trinity River Land Co. 23 (1980) 105 Cal. App. 3d 104, 106.) The theory underlying this defense is that because the first action will 24 normally provide an adequate remedy the second action is unnecessary and vexatious. (California Union 25 Ins. Co. v. Trinity River Land Co. (1980) 105 Cal. App. 3d 104, 109; Fresno Planing Mill Co. v. Manning 26 (1912) 20 Cal.App. 766, 769 ["if the first suit affords an ample remedy to the party claiming to be 27 aggrieved, it would be not only unnecessary but vexatious to permit the prosecution of a second suit 28 founded upon the same cause of action"].) 2 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT 1 2 The plea in abatement is successful only if it can be shown that both suits are predicated upon the 3 same cause of action, both suits are pending in the same jurisdiction, and both suits are contested by the 4 same parties. (Conservatorship of Pacheco (1990) 224, Cal. App. 3d 171, 176). The plea in abatement is 5 essentially a request not that an action be terminated, but that it be continued until such time as there has 6 been a disposition of the first action. (Shuffer v. Board of Trustees (1977) 67 Ca. App. 3d 208, 217.) If 7 these requirements are met, abatement of the second-filed action is mandatory. (Lawyers Title Ins. Corp. 8 v. Superior Court (1984) 151 Cal.App.3d 455, 460.) Sustaining a demurrer on these grounds only abates, 9 but does not terminate, the action. (Western Pipe & Steel Co. v. Tuolumne Gold Dredging Corp. (1944), 10 63 Cal.App.2d 21, 24.) 11 Defendant’s argument that abatement precludes the amendment in this Action is baseless. Plaintiff 12 Bush filed the Second Filed Action on April 24, 2023. (Exhibit 9 to Request for Judicial Notice in support 13 of Reply.) This Action was filed almost a year earlier on June 2, 2022. (Exhibit 3 to the Declaration of 14 Christine LeVu in Support of the Motion for Leave to First Amended Class Action Compliant (“LeVu 15 Decl.”).) Accordingly, Defendant’s argument that amendment would be futile is without merit because 16 this Action was filed before the Second Filed Action. Moreover, there will be no prejudice to Defendant 17 as Plaintiff Bush intends to dismiss the Second Filed Acton if leave to amend in this Action is granted. 18 Abatement is not and cannot be a challenge to this Motion. 19 B. The Defense of Concurrent Jurisdiction Applies ONLY to A Second Filed Action, Not 20 the First. 21 This rule is a judicial policy that mandates the second action to be stayed upon the filing of an 22 appropriate pleading. (BBBB Bonding Corp. v. Caldwell (2021) 73 Cal. App. 5th 349, 374.) The rule is 23 based on the principle that when two courts have concurrent jurisdiction over the same parties and subject 24 matter, the court that first assumes jurisdiction retains it exclusively. (In re Marriage of Thompson (2022) 25 74 Cal. App. 5th 481, 487.) This rule does not require absolute identity of parties and causes of action in 26 the initial and subsequent actions. (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal. 27 App. 4th 760, 770.) Therefore, in California, the defense of concurrent jurisdiction applies to the second 28 filed action, not the first. 3 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT 1 Notably, this Action and the Second Filed Action are both venued in San Mateo Superior Court 2 and therefore, this Court has jurisdiction over both cases. Nevertheless, for the reasons that plea and 3 abatement does not apply to the facts of this case, concurrent jurisdiction also does not bar the filing of an 4 amended complaint. Plaintiff therefore incorporates by reference the arguments set forth in section II(A) 5 of this Reply. 6 C. Plaintiff Must Be Afforded an Opportunity to Name a Suitable Class Representative. 7 Providing an opportunity to amend makes sense when a named plaintiff is disqualified as a result 8 of a defense strategy to defeat a class action by offering individual relief. Without such an opportunity, 9 defendants could manipulate the class action procedure to avoid class claims. (See Larner v. Los 10 Angeles Doctors Hospital Associates, LP (2008) 168 Cal.App.4th 1291, 1299 [“the rule permitting 11 amendment to substitute a new class representative ‘prevents a prospective defendant from avoiding a 12 class action by ‘picking off’ prospective class action plaintiffs one by one, settling each individual claim 13 in an attempt to disqualify the named plaintiff as a class representative’].) 14 Given that Plaintiff has filed, concurrently with this Motion, a Motion to be Relieved of Counsel, 15 the class must be represented by adequate class counsel and therefore, this Court consistent with Jones 16 should permit Plaintiff leave to amend the complaint to name a suitable class representative. As the Court 17 may recall, Defendant by its own admission contends that the Class must be represented by Counsel 18 (Exhibit 4, LeVu Decl., ¶12). Plaintiff Bush is an adequate class representative and willing to represent 19 the class, which abates Defendant’s concern of no counsel for the Class. 20 Last, to the extent Defendant attempts to argue that Plaintiff Bush is not an adequate class 21 representative because he has a separate class action against the same defendant pending in San Mateo 22 entitled Bush v. WeDriveU, Inc. (Case No. 23-CIV-01872) (“Bush Class Action”), this is of no 23 consequence. As relayed to Judge Foils, once the FAC adding Plaintiff Bush to this Action is filed, 24 Plaintiff Bush will immediately dismiss the Bush Class Action. (LeVu Decl., ¶ 20.) That said, any 25 challenge to the substance of the FAC should be brought on Demurrer and is not proper on a Motion for 26 Leave. 27 D. Substitution of a New Class Representative Does Not Require Lack of Standing of the 28 Replaced Class Representative. 4 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT 1 Defendant misquotes the opinion in Branick v. Downey Savings & Loan Assn., 39 Cal. 4th 235, 2 243. Defendant’s Opposition reads: 3 While courts permit an amendment to substitute a new plaintiff under the relation back doctrine, the prior plaintiff “must have been determine to lack standing or [] have lost 4 standing after the complaint was filed.” 5 (Defendant’s Opposition for Motion for Leave to File First Amended Class Action Complaint (“Oppo.”), 6 5:8-11, emphasis added.) Nowhere does the opinion in Branick v. Downey Savings & Loan Assn read 7 Defendant’s quote “the prior plaintiff ‘must have been determined to lack standing” as Defendant 8 misrepresents to this Court. Whether intentional or not this is direct misquotation of the Court. 9 Instead, the cited portion of Branick v. Downey Savings & Loan Assn reads as follows: 10 Defendants argue plaintiffs should not be permitted to substitute a new plaintiff because their failure to name the new plaintiff in their original complaint was not a mistake. No 11 such rule exists. To the contrary, courts have permitted plaintiffs who have been determined to lack standing, or who have lost standing after the complaint was filed, 12 to substitute as plaintiffs the true real parties in interest. 13 Branick v. Downey Savings & Loan Assn. (2006) 39 Cal. 4th 235, 243. Defendant here misquotes and 14 misstates the law. Branick v. Downey Savings & Loan Assn was not a class action and addressed different 15 legal obligations, which does not exist here. Defendant here fails to cite to any case that requires a class 16 representative to lose standing before a substitution of a new class representative. 17 III. CONCLUSION 18 Based upon the foregoing, Plaintiff respectfully requests the Court grant leave to amend the 19 complaint and file the First Amended Class Action Complaint as the doctrine of plea in abatement and 20 exclusive concurrent jurisdiction are inapplicable here. Moreover, Defendant has failed to establish any 21 prejudice if leave is granted and has failed to cite to any case law for the proposition that Plaintiff can only 22 substitute a new class representative when the current class representative has lost standing. 23 24 DATED: December 1, 2023 BLUMENTHAL NORDREHAUG BHOWMIK DE 25 BLOUW LLP 26 By: 27 Christine T. LeVu 28 Attorneys for Plaintiff 5 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS ACTION COMPLAINT