Preview
1 Lenden F. Webb (SBN 236377)
Brooke B. Nevels (SBN 302994)
2 WEBB LAW GROUP, APC
466 W. Fallbrook Ave., Suite 102 E-FILED
3 Fresno, CA 93711 2/11/2021 3:07 PM
Telephone: (559) 431-4888 Superior Court of California
4 Facsimile: (559) 821-4500 County of Fresno
Email: LWebb@WebbLawGroup.com
5 Email: BNevels@WebbLawGroup.com By: J. Nelson, Deputy
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Attorney for Plaintiffs, JENNIFER CHI and RHONDA HARDY-JOEL individuals, on behalf
7 of themselves and on behalf of all persons similarly situated.
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SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO
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CIVIL UNLIMITED DIVISION
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466 West Fallbrook Avenue, Suite 102
WEBB LAW GROUP, APC
Fresno, California 93711
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JENNIFER CHI fka JENNIFER REEDAL, an Case No.: 20CECG00029
13 individual,
RHONDA HARDY-JOEL, an individual, on MEMORANDUM OF POINTS AND
14 behalf of themselves and on behalf of all AUTHORITIES IN SUPPORT OF
persons similarly situated; PLAINTIFFS’ MOTION FOR LEAVE TO
15 AMEND TO FILE THE FOURTH
Plaintiffs, AMENDED COMPLAINT
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vs. Date: May 18, 2021
17 Time: 3:30 PM
COMMUNITY REGIONAL ANESTHESIA Dept: 503
18 MEDICAL GROUP, INC., a California Judge: Hon. Kimberly Gaab
Corporation; Complaint Filed:
19 REGIONAL ANESTHESIA ASSOCIATES,
INC., a California Corporation; Trial Date: December 12, 2021
20 and Does 1 through 25, inclusive,
21 CRC 3.1324
Defendants.
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Plaintiff, JENNIFER CHI fka JENNIFER REEDAL, an individual, (hereinafter,
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CHI )a Pa , RHONDA HARDY-JOEL, an individual, (hereinafter, HARDY-JOEL )
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on behalf of themselves (hereinafter referred to as Plaintiffs ), hereby submit the following
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Memorandum of Points and Authorities in support of Plaintiffs Motion for Leave to Amend to
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file the Fourth Amended Complaint.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 I.
2 INTRODUCTION
3 The Court should grant Plaintiffs motion for leave to file the Fourth Amended
4 Complaint, (a copy of which is attached as E b A to the concurrently filed Declaration of
5 Lenden F. Webb) pursuant to the furtherance of justice, (California Code of Civil Procedure §
6 473(a)(1)) as such proposed Fourth Amended Complaint is based on procedural grounds.
7 Specifically, Plaintiffs seeks leave to plead the cause of action that arises under the Private
8 A G a A ( PAGA ) against additional Defendant REGIONAL ANESTHESIA
9 ASSOCIATES, INC., (hereinafter, RAA ). The deadline to amend the Complaint without
10 making a Motion to Leave to Amend expired prior to when Plaintiffs Third Amended
11 Complaint was filed. Therefore, on December 12, 2020 the Court suggested Plaintiffs seek
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WEBB LAW GROUP, APC
leave to amend before the court in order to make the proposed amendments.
Fresno, California 93711
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13 This Motion for Leave to Amend the Complaint should be granted pursuant to
14 California Code of Civil Procedure Section 473 and California Code of Civil Procedure Section
15 576 because Plaintiffs, the aggrieved employees and the State of California will suffer
16 irreparable harm if the instant motion is not granted, and no prejudice will befall Defendants if
17 the motion is granted as Defendants have had notice of the PAGA claims since the outset of
18 serving the PAGA notice, and because reasonable circumstances made such an amendment
19 necessary.
20 II.
21 STATEMENT OF FACTS
22 As part of their business, Defendant COMMUNITY REGIONAL ANESTHESIA
23 MEDICAL GROUP, INC (hereinafter, CRAMG ) employs a fleet of nurse anesthesiologists.
24 The individuals all perform the same primary job duty, which is to perform anesthesiology for
25 patients receiving surgical medical care. Defendants primarily supply nurse anesthesiologists to
26 CRMC ( C R a M a C , a a a
27 Fresno). Upon hire, the position of nurse anesthesiologist was described to Plaintiffs as an
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 independent contractor position exempt from overtime pay and other related benefits. Further,
2 the position is described in the Independent Contractor Agreement.
3 A CRAMG I C a A ,C R
4 Nurse Anesthetists adhere to detailed and standardized procedures that mirror the realities of
5 the workplace. Consequentially, the standardized practice evidences a uniformity of the highly
6 skilled work performed by Plaintiffs that negates any exercise of independent judgment and
7 discretion as to any matter of significance and negate any role in the participation of
8 formulating Defendant b .
9 Plaintiffs job duties were controlled by CRAMG and RAA. The work schedule for
10 Plaintiffs and other California class members and aggrieved employees was set by Defendants
11 without Plaintiffs .T Plaintiffs and other California class members regularly worked in
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WEBB LAW GROUP, APC
excess of eight (8) hours in a workday and more than forty (40) hours in a workweek. As a
Fresno, California 93711
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13 matter of company policy, practice, and procedure, Defendants uniformly, unlawfully, unfairly
14 and /or deceptively classified every CRAMG and RAA nurse anesthesiologist as exempt based
15 on their status of independent contractors and failed to pay the required overtime compensation
16 and otherwise failed to comply with the relevant California labor laws with respect to these
17 nurse anesthesiologists. Defendants instituted a blanket policy, practice and/or procedure by
18 which these employees were all independent contractors and exempt from overtime
19 compensation.
20 III. PROCEDURAL HISTORY AND BACKGROUND FACTS
21 O Ja a 2, 2020, P a C ( C ) Complaint. On January 17, 2020,
22 Chi provided written notice to Defendant CRAMG and the Labor & Workforce Development
23 Agency ( LWDA ) which alleged specific provisions of the Private A G a A
24 ( PAGA ) a a (a true and correct copy of the PAGA Claim Notice provided to
25 CRAMG is attached as Exhibit B to the Declaration of Lenden F. Webb submitted herewith).
26 Subsequently after the filing of the lawsuit, an additional Plaintiff, Rhonda Hardy-Joel
27 ( Ha -J ) a a a a ,a a a .A a ,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 a a b a Pa ,Pa a a
2 Defendant RAA, who has some affiliation and relationship with CRAMG, also employed
3 Plaintiffs, the aggrieved employees, and the class.
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On February 19, 2020, Plaintiff Chi amended her Complaint to include Hardy-Joel and
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to also add Defendant RAA. At this time, Plaintiffs could not add a PAGA cause of action
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because the 65 day investigation period had not expired.
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On March 27, 2020, the parties entered into a stipulation to file a Second Amended
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Complaint (a true and correct cop of the Stipulation is attached as E hibit C to the
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Declaration of Lenden F. Webb submitted herewith). In that stipulation, the parties agreed that
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Plaintiffs would cure some deficiencies with the seventh cause of action. The stipulation also
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WEBB LAW GROUP, APC
noted that an immediate amendment would be futile as Plaintiff RHONDA HARDY JOEL
Fresno, California 93711
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submitted a claim with the LWDA on or about March 2, 2020 against Defendant CRAMG, so
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an amended complaint could not be filed to include a PAGA claim for her until sometime in
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early May 2020. However, the parties wanted to get a Complaint submitted and an Answer on
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file before the originally scheduled Case Management Conference that was originally
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scheduled for May 14, 2020.
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On or around April 30, 2020, Plaintiffs received notice that the Case Management
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Conference was going to be continued to July 24, 2020 (thus there was no rush to get an
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amended complaint and answer on file). The parties then subsequently filed an Amended
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Stipulation which allowed Plaintiff to also include additional causes of action in the Second
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Amended Complaint for Failure to Reimburse, and an individual claim for Plaintiff Hardy-Joel.
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The parties filed the amended stipulation, and the stipulation was granted and ordered on June
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8, 2020 (a true and correct cop of the Amended Stipulation is attached as E hibit D to the
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Declaration of Lenden F. Webb). Three (3) days after the Amended Stipulation was signed,
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Plaintiffs filed their Second Amended Complaint, which included a PAGA cause of action
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against Defendant CRAMG.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 D ,a a a b Pa ,Pa
2 also determined it was necessary to also file a PAGA claim against the new Defendant, RAA.
3 Therefore, on or around April , 2020, Plaintiffs served and submitted their written claims to
4 Defendants and the LWDA (a true and correct cop of the Plaintiffs PAGA Claim Notices to
5 RAA are attached as E hibit E to the Declaration of Lenden F. Webb submitted herewith).
6 Since Plaintiffs needed to wait the sixty-five days to allow the LWDA to investigate the claims,
7 Plaintiffs could not include RAA in the Second Amended Complaint at the time it was filed
8 because it was premature.
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O A 13, 2020, P a T A C a ( TAC )
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include RAA as a Defendant under the PAGA cause of action.
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While generally, Plaintiffs do not need leave to add a PAGA cause of action, on
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December 17, 2020, the Court gran D a M S TAC a Pa
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not file their amended complaint within 60 days as provided in Lab. Code § 2699.3(a)(2)(c).
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This code section provides:
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Notwithstanding any other provision of law, a plaintiff may as a
16 matter of right amend an existing complaint to add a cause of
action arising under this part at any time within 60 days of the
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time periods specified in this part. Id.
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The court noted in its ruling that the latest Plaintiffs had to file an amended complaint
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without leave was July 5, 2020. Plaintiffs filed their TAC approximately one month after that
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date.
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During the time pending the Motion to Strike, Plaintiffs met and conferred with
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Defendants and requested that they provide a stipulation for leave to amend. Defendants
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refused. As a result, Plaintiffs have filed instant motion in order to obtain leave to file a Fourth
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Amended Complaint.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 IV.
2 ARGUMENT
3 The court has discretion to allow a party to amend a pleading. CCP § 473(a)(1). Statutes
4 a a a a b b a a a b
5 upon their merits in one trial where no prejudice to the opposing party a . Rainer
6 v. Cmty. Mem. Hosp. (1971) 18. Cal. App. 3d 240,254. Simply stated, amendments to pleadings
7 are freely granted by the Court in the interest of justice. The policy favoring amendment is so
8 strong that it is a rare case in which den a a a a b ;
9 amend is timely made and the granting of the motion will not prejudice the opposing party, it is
10 error to refuse permission to amend and where the refusal also results in a party being deprived
11 of the right to assert a meritorious cause of action or a meritorious defense, it is not only error
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but an abuse of discretion. Morgan v. Sup. Ct. (1959) 172 Cal. App. 2d 527,530.
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13 Plaintiffs decision to add an additional defendant to the lawsuit created a foreseeable
14 delay. O D a RAA a a arising under PAGA were
15 discovered, Plaintiffs had to again abide by PAGA procedural requirements, which necessitated
16 PAGA letters to be sent and new PAGA curing periods to run before proper amendments could
17 be made.
a. Plaintiffs’ Motion is Necessary and Proper (CRC 3.1324)
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As stated above, the direct relationship between Defendant RAA and Defendant
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CRAMG and their joint relationship to the Plaintiffs a / job assignments
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became apparent after the original complaint was filed. The assignments made by Defendant
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RAA through Defendant CRAMG to Plaintiffs are improper because Plaintiffs were
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a b D a a I C a .
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Furthermore, Plaintiffs never willingly or knowingly entered into a contract with Defendant
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RAA. Plaintiffs knew of D a CRAMG PAGA violations prior to their discovery of
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D a RAA involvement and thus own violations, which caused procedural delay and
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multiple amendments to the complaint. Plaintiffs were not able to file the Third and Fourth
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 Amended Complaints, until after the PAGA letters to Defendant RAA cured, after all prior
2 drafts of the complaint were filed.
3 As a result of the unique procedural requirements that PAGA imposes, which
4 contributed to the complex procedural history of this case, that includes the early addition
5 Plaintiff Hardy-Joel, and Defendant RAA, the determination that a PAGA claim must be
6 brought against both Defendants, Plaintiffs believed they were amending the Third
7 Amended Complaint within the prescribed cut off period, but instead sought to leave to amend
8 without making a motion before the court. This procedural error should not preclude Plaintiffs
9 from making the proposed amendments as the amendments are necessary and proper. Plaintiffs
10 not seeking to make substantive changes at this time other than to add RAA as a Defendant
11 under the current cause of action. Therefore, Plaintiffs do not seek to leave to cure a deficiency,
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but rather to merely a procedural requirement that is necessary in order to appropriately allege
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13 an applicable cause of action on behalf of the state of California, against Defendant RAA.
14 Additionally, the State of California has a legitimate interest in a PAGA claim
15 proceeding forward and not being prohibited by a procedural technicality because Plaintiffs
16 counsel is serving as its proxy to enforcement of applicable labor laws.
17 An employee seeking PAGA penalties must notify the employer and the LWDA of the
18 specific labor violations alleged, along with the facts and theories supporting the claim. (§
19 2699.3, subd. (a)(1)(A). If the agency does not investigate, does not issue a citation, or fails to
20 respond to the notice within 65 days, the employee may sue. (§ 2699.3, subd. (a)(2).) The
21 notice requirement allows the relevant state agency “to decide whether to allocate scarce
22 resources to an investigation.” Williams v. Superior Court (2017) 3 Cal.5th 531, 545, 220
23 Cal.Rptr.3d 472, 398 P.3d 69.
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An employee suing under PAGA “does so as the proxy or agent of the state's labor law
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enforcement agencies.” (Arias, supra, 46 Cal.4th at p. 986, 95 Cal.Rptr.3d 588, 209 P.3d 923,
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italics added.) Every PAGA claim is “a dispute between an employer and the state.”
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 (Iskanian, supra, 59 Cal.4th at p. 386, 173 Cal.Rptr.3d 289, 327 P.3d 129; see id. at p. 384, 173
2 Cal.Rptr.3d 289, 327 P.3d 129; Arias, at p. 986, 95 Cal.Rptr.3d 588, 209 P.3d 923.)
3 Without Plaintiffs ability to join Defendant RAA under the PAGA cause of action,
4 Defendant RAA will not be prosecuted to the fullest and fairest extent. The granting of the
5 instant motion is necessary and proper pursuant to CRC 3.1324 to uphold State s interest of
6 protecting employees and holding employers accountable for violations of the labor code, and
7 because the State will be prejudiced should the instant motion not be granted.
b. Amendments to Pleadings Are Routinely Granted in the Furtherance of Justice
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(CCP § 473(a)(1))
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A Ca aC C P 473(a)(1), a ,
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furtherance of justice, and on any terms as may be proper allow a party to amend any
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a C berally apply this rule to amend pleadings, and often grant amendments so
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Fresno, California 93711
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that all issues may be properly presented and resolved. (Moss Estate Co. v. Alder (1953) 41
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Cal.2d 581, 585). Additionally, liberal discretion is employed to quickly end lawsuits that have
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the potential to be determined upon their merits (Desny v. Wilder (1956) 46 Cal.2d 715, 751).
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Counsel for Plaintiff seeks to add three additional Causes of Action in order to secure the
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proper interests of Plaintiff, prot a Pa , and in the furtherance of justice.
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c. Defendant Will Not Be Prejudicially Affected By this Amendment (CRC 3.1324)
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C a a a b a a a a a
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time of the proceedings, up to and including a, a a se party is not
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prejudiced by the amendments. (Atkinson v. Elk Corp., (2003) 109 CA4th 739, 761).
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Defendants will not be prejudicially affected by the proposed amendments because Defendants
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knew or reasonably should have known that they were going to be joined under the cause of
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action arising under PAGA because Defendants have been on notice of such, on numerous
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occasions, dating as far back as January 2020.
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Defendant CRAMG has been on notice of its specific violations of Labor Code §§ 2698
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et seq., that arise under PAGA, since January 2020 when it received the first PAGA letter. By
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June 2020, Plaintiffs filed their Second Amended Complaint that contained cause of action
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 arising under PAGA against Defendant CRAMG. As the facts stated above, Defendant RAA
2 likewise has been on notice of its own violations of PAGA since April 2020 when it received
3 the PAGA letters. Defendant RAA and Defendant CRAMG knew or reasonably should have
4 known that they were going to be joined under this cause of action as a result of their
5 engagement in unlawful business practices in connection with CRAMG.
6 Additionally, Defendants will not be prejudiced, due to the nature of the proposed
7 amendments, because Defendants will not have would have to produce a substantively new
8 responsive pleading. Defendants may file practically the same answer that was previously filed,
9 as they did with the previous stipulation for leave to amend.
10 Also, the proposed amendments do not increase the amount of discoverable evidence or
11 witnesses to the case. Indeed, the proposed amendment merely opens an additional claim
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arising under PAGA, which is not used to recover damages or restitution, but to create a means
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13 of deputizing citizens as the private attorneys general to enforce the Labor Code. Therefore, the
14 addition would be made without substantially expanding the case in a manner that necessitates
15 additional time or expense on the part of the Defendants.
16 As such, Plaintiffs, the aggrieved employees, and the State will suffer prejudice if the
17 instant Motion is not granted. Plaintiffs should be granted leave to file a Fourth Amended
18 Complaint, as it is permitted by the Courts, knowing that Defendants will not be prejudiced by
19 such an Order.
d. Request for Amendment is Timely and Not Delayed (CRC 3.1324)
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A a a a ba b Pa
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Counsel until after the original Complaint was filed on January 2, 2020 and since then,
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research, conferring with the clients, additional of Defendant RAA, unique procedural
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requirements of PAGA, and effects of the current global pandemic resulted in our office not
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being able to file Plaintiffs Third Amended Complaint without leave to amend within the
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PAGA prescribed sixty (60) day cutoff. On December 18, 2020, almost four (4) months after
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filing, the Third Amended Complaint was stricken. Plaintiffs now make a motion for leave to
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 file the Fourth Amended Complaint in a timely manner in order to secure the proper interests of
2 the Plaintiffs, the aggrieved class, and the state of California, to protect all of Plaintiffs ,
3 and in the furtherance of justice.
4 Trial is not scheduled until December 12, 2021, furnishing Defendants with ample time
5 to respond to the proposed amendments accordingly and without prejudice.
6 V.
7 CONCLUSION
8 Based on the foregoing, Plaintiff respectfully requests that this Court grant this Motion
9 for Leave to Amend to File the Fourth Amended Complaint, knowing that this Motion is
10 brought in the furtherance of justice, and will not prejudice Defendants.
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466 West Fallbrook Avenue, Suite 102
WEBB LAW GROUP, APC
Dated: February 11, 2021 WEBB LAW GROUP, APC
Fresno, California 93711
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By: _________________________
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BROOKE B. NEVELS
16 LENDEN F. WEBB
Attorney for Plaintiffs
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED
COMPLAINT
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1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF FRESNO
3 I am employed in the County of San Diego, State of California. I am over the age of 18
and not a party to the within action; my business address is: 466 West Fallbrook Avenue, Suite
4 102, Fresno, California 93711. My email address is Office@WebbLawGroup.com.
5 On February 11, 2021, I served the document(s) described as:
6 1. NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND COMPLAINT
7 TO FILE THE FOURTH AMENDED COMPLAINT
2. DECLA A ION OF LENDEN F. EBB PPO OF PLAIN IFF
8 MOTION FOR LEAVE TO AMEND AND TO FILE THE FOURTH AMENDED
COMPLAINT
9 3. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
10 PLAIN IFF MO ION FO LEA E O AMEND O FILE HE FO H
AMENDED COMPLAINT
11 4. P OPO ED O DE G AN ING PLAIN IFF MO ION FO LEA E O
AMEND TO FILE THE FOURTH AMENDED COMPLAINT
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on the interested parties in this action by placing a true copy thereof enclosed in a sealed
Fresno, California 93711
13 envelope at: San Diego, California, addressed as follows:
14 Ryan Eddings Ruth Zadikany
15 LITTLER MENDELSON P.C MAYER BROWN LLP
5200 North Palm Avenue, Suite 302 350 South Grand Avenue, 25th Floor
16 Fresno, CA 93704 Los Angeles, CA 90071-1503
Telephone: (559)244-7533 Telephone: (213) 621-3916
17 Fax: (559)244-7525 Fax: (213) 625-0248
18 E-mail: REddings@Littler.com Email: RZadikany@MayerBrown.com
E-mail: AWoo@Littler.com Attorney for Defendants Community
19 E-mail: LHammond@Littler.com Regional Anesthesia Medial Group, Inc
Attorney for Defendants Community and Regional Anesthesia Associates, Inc
20 Regional Anesthesia Medical Group, Inc
21 and Regional Anesthesia Associates, Inc
22 (BY MAIL) I am readil familiar ih his b siness prac ice for collec ion and
processing of correspondence for mailing, and that correspondence, with postage thereon
23 fully prepaid, will be deposited with the U.S. Postal Service on the date hereinabove in
24 the ordinary course of business, at San Diego, California.
25 XX (BY E-MAIL) I caused the above-referenced document(s) to be electronically mailed to
the offices of the addressee(s) as a courtesy, pursuant to an applicable code or a valid
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stipulation. (Email stipulation for electronic service pursuant to CCP §§1013(g) and
27 1010.6. Email stipulated entered on April 8, 2020.) I did not receive, within a reasonable
time after the transmission, any electronic message or other indication that the
28 transmission was unsuccessful.
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Executed on February 11, 2021, at San Diego, California
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XX (STATE) I declare under penalty of perjury under the laws of the State of California that
3 the foregoing is true and correct.
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___________________________________________
5 WILLIAM C. STANINGER
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Preview
1 Lenden F. Webb (SBN 236377) Brooke B. Nevels (SBN 302994) 2 WEBB LAW GROUP, APC 466 W. Fallbrook Ave., Suite 102 E-FILED 3 Fresno, CA 93711 2/11/2021 3:07 PM Telephone: (559) 431-4888 Superior Court of California 4 Facsimile: (559) 821-4500 County of Fresno Email: LWebb@WebbLawGroup.com 5 Email: BNevels@WebbLawGroup.com By: J. Nelson, Deputy 6 Attorney for Plaintiffs, JENNIFER CHI and RHONDA HARDY-JOEL individuals, on behalf 7 of themselves and on behalf of all persons similarly situated. 8 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO 10 CIVIL UNLIMITED DIVISION 11 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC Fresno, California 93711 12 JENNIFER CHI fka JENNIFER REEDAL, an Case No.: 20CECG00029 13 individual, RHONDA HARDY-JOEL, an individual, on MEMORANDUM OF POINTS AND 14 behalf of themselves and on behalf of all AUTHORITIES IN SUPPORT OF persons similarly situated; PLAINTIFFS’ MOTION FOR LEAVE TO 15 AMEND TO FILE THE FOURTH Plaintiffs, AMENDED COMPLAINT 16 vs. Date: May 18, 2021 17 Time: 3:30 PM COMMUNITY REGIONAL ANESTHESIA Dept: 503 18 MEDICAL GROUP, INC., a California Judge: Hon. Kimberly Gaab Corporation; Complaint Filed: 19 REGIONAL ANESTHESIA ASSOCIATES, INC., a California Corporation; Trial Date: December 12, 2021 20 and Does 1 through 25, inclusive, 21 CRC 3.1324 Defendants. 22 23 Plaintiff, JENNIFER CHI fka JENNIFER REEDAL, an individual, (hereinafter, 24 CHI )a Pa , RHONDA HARDY-JOEL, an individual, (hereinafter, HARDY-JOEL ) 25 on behalf of themselves (hereinafter referred to as Plaintiffs ), hereby submit the following 26 Memorandum of Points and Authorities in support of Plaintiffs Motion for Leave to Amend to 27 file the Fourth Amended Complaint. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT -1- 1 I. 2 INTRODUCTION 3 The Court should grant Plaintiffs motion for leave to file the Fourth Amended 4 Complaint, (a copy of which is attached as E b A to the concurrently filed Declaration of 5 Lenden F. Webb) pursuant to the furtherance of justice, (California Code of Civil Procedure § 6 473(a)(1)) as such proposed Fourth Amended Complaint is based on procedural grounds. 7 Specifically, Plaintiffs seeks leave to plead the cause of action that arises under the Private 8 A G a A ( PAGA ) against additional Defendant REGIONAL ANESTHESIA 9 ASSOCIATES, INC., (hereinafter, RAA ). The deadline to amend the Complaint without 10 making a Motion to Leave to Amend expired prior to when Plaintiffs Third Amended 11 Complaint was filed. Therefore, on December 12, 2020 the Court suggested Plaintiffs seek 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC leave to amend before the court in order to make the proposed amendments. Fresno, California 93711 12 13 This Motion for Leave to Amend the Complaint should be granted pursuant to 14 California Code of Civil Procedure Section 473 and California Code of Civil Procedure Section 15 576 because Plaintiffs, the aggrieved employees and the State of California will suffer 16 irreparable harm if the instant motion is not granted, and no prejudice will befall Defendants if 17 the motion is granted as Defendants have had notice of the PAGA claims since the outset of 18 serving the PAGA notice, and because reasonable circumstances made such an amendment 19 necessary. 20 II. 21 STATEMENT OF FACTS 22 As part of their business, Defendant COMMUNITY REGIONAL ANESTHESIA 23 MEDICAL GROUP, INC (hereinafter, CRAMG ) employs a fleet of nurse anesthesiologists. 24 The individuals all perform the same primary job duty, which is to perform anesthesiology for 25 patients receiving surgical medical care. Defendants primarily supply nurse anesthesiologists to 26 CRMC ( C R a M a C , a a a 27 Fresno). Upon hire, the position of nurse anesthesiologist was described to Plaintiffs as an 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT -2- 1 independent contractor position exempt from overtime pay and other related benefits. Further, 2 the position is described in the Independent Contractor Agreement. 3 A CRAMG I C a A ,C R 4 Nurse Anesthetists adhere to detailed and standardized procedures that mirror the realities of 5 the workplace. Consequentially, the standardized practice evidences a uniformity of the highly 6 skilled work performed by Plaintiffs that negates any exercise of independent judgment and 7 discretion as to any matter of significance and negate any role in the participation of 8 formulating Defendant b . 9 Plaintiffs job duties were controlled by CRAMG and RAA. The work schedule for 10 Plaintiffs and other California class members and aggrieved employees was set by Defendants 11 without Plaintiffs .T Plaintiffs and other California class members regularly worked in 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC excess of eight (8) hours in a workday and more than forty (40) hours in a workweek. As a Fresno, California 93711 12 13 matter of company policy, practice, and procedure, Defendants uniformly, unlawfully, unfairly 14 and /or deceptively classified every CRAMG and RAA nurse anesthesiologist as exempt based 15 on their status of independent contractors and failed to pay the required overtime compensation 16 and otherwise failed to comply with the relevant California labor laws with respect to these 17 nurse anesthesiologists. Defendants instituted a blanket policy, practice and/or procedure by 18 which these employees were all independent contractors and exempt from overtime 19 compensation. 20 III. PROCEDURAL HISTORY AND BACKGROUND FACTS 21 O Ja a 2, 2020, P a C ( C ) Complaint. On January 17, 2020, 22 Chi provided written notice to Defendant CRAMG and the Labor & Workforce Development 23 Agency ( LWDA ) which alleged specific provisions of the Private A G a A 24 ( PAGA ) a a (a true and correct copy of the PAGA Claim Notice provided to 25 CRAMG is attached as Exhibit B to the Declaration of Lenden F. Webb submitted herewith). 26 Subsequently after the filing of the lawsuit, an additional Plaintiff, Rhonda Hardy-Joel 27 ( Ha -J ) a a a a ,a a a .A a , 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT -3- 1 a a b a Pa ,Pa a a 2 Defendant RAA, who has some affiliation and relationship with CRAMG, also employed 3 Plaintiffs, the aggrieved employees, and the class. 4 On February 19, 2020, Plaintiff Chi amended her Complaint to include Hardy-Joel and 5 to also add Defendant RAA. At this time, Plaintiffs could not add a PAGA cause of action 6 because the 65 day investigation period had not expired. 7 On March 27, 2020, the parties entered into a stipulation to file a Second Amended 8 Complaint (a true and correct cop of the Stipulation is attached as E hibit C to the 9 Declaration of Lenden F. Webb submitted herewith). In that stipulation, the parties agreed that 10 Plaintiffs would cure some deficiencies with the seventh cause of action. The stipulation also 11 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC noted that an immediate amendment would be futile as Plaintiff RHONDA HARDY JOEL Fresno, California 93711 12 submitted a claim with the LWDA on or about March 2, 2020 against Defendant CRAMG, so 13 an amended complaint could not be filed to include a PAGA claim for her until sometime in 14 early May 2020. However, the parties wanted to get a Complaint submitted and an Answer on 15 file before the originally scheduled Case Management Conference that was originally 16 scheduled for May 14, 2020. 17 18 On or around April 30, 2020, Plaintiffs received notice that the Case Management 19 Conference was going to be continued to July 24, 2020 (thus there was no rush to get an 20 amended complaint and answer on file). The parties then subsequently filed an Amended 21 Stipulation which allowed Plaintiff to also include additional causes of action in the Second 22 Amended Complaint for Failure to Reimburse, and an individual claim for Plaintiff Hardy-Joel. 23 The parties filed the amended stipulation, and the stipulation was granted and ordered on June 24 8, 2020 (a true and correct cop of the Amended Stipulation is attached as E hibit D to the 25 Declaration of Lenden F. Webb). Three (3) days after the Amended Stipulation was signed, 26 Plaintiffs filed their Second Amended Complaint, which included a PAGA cause of action 27 against Defendant CRAMG. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT -4- 1 D ,a a a b Pa ,Pa 2 also determined it was necessary to also file a PAGA claim against the new Defendant, RAA. 3 Therefore, on or around April , 2020, Plaintiffs served and submitted their written claims to 4 Defendants and the LWDA (a true and correct cop of the Plaintiffs PAGA Claim Notices to 5 RAA are attached as E hibit E to the Declaration of Lenden F. Webb submitted herewith). 6 Since Plaintiffs needed to wait the sixty-five days to allow the LWDA to investigate the claims, 7 Plaintiffs could not include RAA in the Second Amended Complaint at the time it was filed 8 because it was premature. 9 O A 13, 2020, P a T A C a ( TAC ) 10 include RAA as a Defendant under the PAGA cause of action. 11 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC While generally, Plaintiffs do not need leave to add a PAGA cause of action, on Fresno, California 93711 12 December 17, 2020, the Court gran D a M S TAC a Pa 13 not file their amended complaint within 60 days as provided in Lab. Code § 2699.3(a)(2)(c). 14 This code section provides: 15 Notwithstanding any other provision of law, a plaintiff may as a 16 matter of right amend an existing complaint to add a cause of action arising under this part at any time within 60 days of the 17 time periods specified in this part. Id. 18 The court noted in its ruling that the latest Plaintiffs had to file an amended complaint 19 without leave was July 5, 2020. Plaintiffs filed their TAC approximately one month after that 20 date. 21 22 During the time pending the Motion to Strike, Plaintiffs met and conferred with 23 Defendants and requested that they provide a stipulation for leave to amend. Defendants 24 refused. As a result, Plaintiffs have filed instant motion in order to obtain leave to file a Fourth 25 Amended Complaint. 26 /// 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT -5- 1 IV. 2 ARGUMENT 3 The court has discretion to allow a party to amend a pleading. CCP § 473(a)(1). Statutes 4 a a a a b b a a a b 5 upon their merits in one trial where no prejudice to the opposing party a . Rainer 6 v. Cmty. Mem. Hosp. (1971) 18. Cal. App. 3d 240,254. Simply stated, amendments to pleadings 7 are freely granted by the Court in the interest of justice. The policy favoring amendment is so 8 strong that it is a rare case in which den a a a a b ; 9 amend is timely made and the granting of the motion will not prejudice the opposing party, it is 10 error to refuse permission to amend and where the refusal also results in a party being deprived 11 of the right to assert a meritorious cause of action or a meritorious defense, it is not only error 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC but an abuse of discretion. Morgan v. Sup. Ct. (1959) 172 Cal. App. 2d 527,530. Fresno, California 93711 12 13 Plaintiffs decision to add an additional defendant to the lawsuit created a foreseeable 14 delay. O D a RAA a a arising under PAGA were 15 discovered, Plaintiffs had to again abide by PAGA procedural requirements, which necessitated 16 PAGA letters to be sent and new PAGA curing periods to run before proper amendments could 17 be made. a. Plaintiffs’ Motion is Necessary and Proper (CRC 3.1324) 18 As stated above, the direct relationship between Defendant RAA and Defendant 19 CRAMG and their joint relationship to the Plaintiffs a / job assignments 20 became apparent after the original complaint was filed. The assignments made by Defendant 21 RAA through Defendant CRAMG to Plaintiffs are improper because Plaintiffs were 22 a b D a a I C a . 23 Furthermore, Plaintiffs never willingly or knowingly entered into a contract with Defendant 24 RAA. Plaintiffs knew of D a CRAMG PAGA violations prior to their discovery of 25 D a RAA involvement and thus own violations, which caused procedural delay and 26 multiple amendments to the complaint. Plaintiffs were not able to file the Third and Fourth 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT -6- 1 Amended Complaints, until after the PAGA letters to Defendant RAA cured, after all prior 2 drafts of the complaint were filed. 3 As a result of the unique procedural requirements that PAGA imposes, which 4 contributed to the complex procedural history of this case, that includes the early addition 5 Plaintiff Hardy-Joel, and Defendant RAA, the determination that a PAGA claim must be 6 brought against both Defendants, Plaintiffs believed they were amending the Third 7 Amended Complaint within the prescribed cut off period, but instead sought to leave to amend 8 without making a motion before the court. This procedural error should not preclude Plaintiffs 9 from making the proposed amendments as the amendments are necessary and proper. Plaintiffs 10 not seeking to make substantive changes at this time other than to add RAA as a Defendant 11 under the current cause of action. Therefore, Plaintiffs do not seek to leave to cure a deficiency, 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC but rather to merely a procedural requirement that is necessary in order to appropriately allege Fresno, California 93711 12 13 an applicable cause of action on behalf of the state of California, against Defendant RAA. 14 Additionally, the State of California has a legitimate interest in a PAGA claim 15 proceeding forward and not being prohibited by a procedural technicality because Plaintiffs 16 counsel is serving as its proxy to enforcement of applicable labor laws. 17 An employee seeking PAGA penalties must notify the employer and the LWDA of the 18 specific labor violations alleged, along with the facts and theories supporting the claim. (§ 19 2699.3, subd. (a)(1)(A). If the agency does not investigate, does not issue a citation, or fails to 20 respond to the notice within 65 days, the employee may sue. (§ 2699.3, subd. (a)(2).) The 21 notice requirement allows the relevant state agency “to decide whether to allocate scarce 22 resources to an investigation.” Williams v. Superior Court (2017) 3 Cal.5th 531, 545, 220 23 Cal.Rptr.3d 472, 398 P.3d 69. 24 An employee suing under PAGA “does so as the proxy or agent of the state's labor law 25 enforcement agencies.” (Arias, supra, 46 Cal.4th at p. 986, 95 Cal.Rptr.3d 588, 209 P.3d 923, 26 italics added.) Every PAGA claim is “a dispute between an employer and the state.” 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT -7- 1 (Iskanian, supra, 59 Cal.4th at p. 386, 173 Cal.Rptr.3d 289, 327 P.3d 129; see id. at p. 384, 173 2 Cal.Rptr.3d 289, 327 P.3d 129; Arias, at p. 986, 95 Cal.Rptr.3d 588, 209 P.3d 923.) 3 Without Plaintiffs ability to join Defendant RAA under the PAGA cause of action, 4 Defendant RAA will not be prosecuted to the fullest and fairest extent. The granting of the 5 instant motion is necessary and proper pursuant to CRC 3.1324 to uphold State s interest of 6 protecting employees and holding employers accountable for violations of the labor code, and 7 because the State will be prejudiced should the instant motion not be granted. b. Amendments to Pleadings Are Routinely Granted in the Furtherance of Justice 8 (CCP § 473(a)(1)) 9 A Ca aC C P 473(a)(1), a , 10 furtherance of justice, and on any terms as may be proper allow a party to amend any 11 466 West Fallbrook Avenue, Suite 102 a C berally apply this rule to amend pleadings, and often grant amendments so WEBB LAW GROUP, APC Fresno, California 93711 12 that all issues may be properly presented and resolved. (Moss Estate Co. v. Alder (1953) 41 13 Cal.2d 581, 585). Additionally, liberal discretion is employed to quickly end lawsuits that have 14 the potential to be determined upon their merits (Desny v. Wilder (1956) 46 Cal.2d 715, 751). 15 Counsel for Plaintiff seeks to add three additional Causes of Action in order to secure the 16 proper interests of Plaintiff, prot a Pa , and in the furtherance of justice. 17 c. Defendant Will Not Be Prejudicially Affected By this Amendment (CRC 3.1324) 18 C a a a b a a a a a 19 time of the proceedings, up to and including a, a a se party is not 20 prejudiced by the amendments. (Atkinson v. Elk Corp., (2003) 109 CA4th 739, 761). 21 Defendants will not be prejudicially affected by the proposed amendments because Defendants 22 knew or reasonably should have known that they were going to be joined under the cause of 23 action arising under PAGA because Defendants have been on notice of such, on numerous 24 occasions, dating as far back as January 2020. 25 Defendant CRAMG has been on notice of its specific violations of Labor Code §§ 2698 26 et seq., that arise under PAGA, since January 2020 when it received the first PAGA letter. By 27 June 2020, Plaintiffs filed their Second Amended Complaint that contained cause of action 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT -8- 1 arising under PAGA against Defendant CRAMG. As the facts stated above, Defendant RAA 2 likewise has been on notice of its own violations of PAGA since April 2020 when it received 3 the PAGA letters. Defendant RAA and Defendant CRAMG knew or reasonably should have 4 known that they were going to be joined under this cause of action as a result of their 5 engagement in unlawful business practices in connection with CRAMG. 6 Additionally, Defendants will not be prejudiced, due to the nature of the proposed 7 amendments, because Defendants will not have would have to produce a substantively new 8 responsive pleading. Defendants may file practically the same answer that was previously filed, 9 as they did with the previous stipulation for leave to amend. 10 Also, the proposed amendments do not increase the amount of discoverable evidence or 11 witnesses to the case. Indeed, the proposed amendment merely opens an additional claim 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC arising under PAGA, which is not used to recover damages or restitution, but to create a means Fresno, California 93711 12 13 of deputizing citizens as the private attorneys general to enforce the Labor Code. Therefore, the 14 addition would be made without substantially expanding the case in a manner that necessitates 15 additional time or expense on the part of the Defendants. 16 As such, Plaintiffs, the aggrieved employees, and the State will suffer prejudice if the 17 instant Motion is not granted. Plaintiffs should be granted leave to file a Fourth Amended 18 Complaint, as it is permitted by the Courts, knowing that Defendants will not be prejudiced by 19 such an Order. d. Request for Amendment is Timely and Not Delayed (CRC 3.1324) 20 A a a a ba b Pa 21 Counsel until after the original Complaint was filed on January 2, 2020 and since then, 22 research, conferring with the clients, additional of Defendant RAA, unique procedural 23 requirements of PAGA, and effects of the current global pandemic resulted in our office not 24 being able to file Plaintiffs Third Amended Complaint without leave to amend within the 25 PAGA prescribed sixty (60) day cutoff. On December 18, 2020, almost four (4) months after 26 filing, the Third Amended Complaint was stricken. Plaintiffs now make a motion for leave to 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT -9- 1 file the Fourth Amended Complaint in a timely manner in order to secure the proper interests of 2 the Plaintiffs, the aggrieved class, and the state of California, to protect all of Plaintiffs , 3 and in the furtherance of justice. 4 Trial is not scheduled until December 12, 2021, furnishing Defendants with ample time 5 to respond to the proposed amendments accordingly and without prejudice. 6 V. 7 CONCLUSION 8 Based on the foregoing, Plaintiff respectfully requests that this Court grant this Motion 9 for Leave to Amend to File the Fourth Amended Complaint, knowing that this Motion is 10 brought in the furtherance of justice, and will not prejudice Defendants. 11 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC Dated: February 11, 2021 WEBB LAW GROUP, APC Fresno, California 93711 12 13 14 By: _________________________ 15 BROOKE B. NEVELS 16 LENDEN F. WEBB Attorney for Plaintiffs 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND AND FILE THE FOURTH AMENDED COMPLAINT - 10 - 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF FRESNO 3 I am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is: 466 West Fallbrook Avenue, Suite 4 102, Fresno, California 93711. My email address is Office@WebbLawGroup.com. 5 On February 11, 2021, I served the document(s) described as: 6 1. NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND COMPLAINT 7 TO FILE THE FOURTH AMENDED COMPLAINT 2. DECLA A ION OF LENDEN F. EBB PPO OF PLAIN IFF 8 MOTION FOR LEAVE TO AMEND AND TO FILE THE FOURTH AMENDED COMPLAINT 9 3. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 10 PLAIN IFF MO ION FO LEA E O AMEND O FILE HE FO H AMENDED COMPLAINT 11 4. P OPO ED O DE G AN ING PLAIN IFF MO ION FO LEA E O AMEND TO FILE THE FOURTH AMENDED COMPLAINT 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC 12 on the interested parties in this action by placing a true copy thereof enclosed in a sealed Fresno, California 93711 13 envelope at: San Diego, California, addressed as follows: 14 Ryan Eddings Ruth Zadikany 15 LITTLER MENDELSON P.C MAYER BROWN LLP 5200 North Palm Avenue, Suite 302 350 South Grand Avenue, 25th Floor 16 Fresno, CA 93704 Los Angeles, CA 90071-1503 Telephone: (559)244-7533 Telephone: (213) 621-3916 17 Fax: (559)244-7525 Fax: (213) 625-0248 18 E-mail: REddings@Littler.com Email: RZadikany@MayerBrown.com E-mail: AWoo@Littler.com Attorney for Defendants Community 19 E-mail: LHammond@Littler.com Regional Anesthesia Medial Group, Inc Attorney for Defendants Community and Regional Anesthesia Associates, Inc 20 Regional Anesthesia Medical Group, Inc 21 and Regional Anesthesia Associates, Inc 22 (BY MAIL) I am readil familiar ih his b siness prac ice for collec ion and processing of correspondence for mailing, and that correspondence, with postage thereon 23 fully prepaid, will be deposited with the U.S. Postal Service on the date hereinabove in 24 the ordinary course of business, at San Diego, California. 25 XX (BY E-MAIL) I caused the above-referenced document(s) to be electronically mailed to the offices of the addressee(s) as a courtesy, pursuant to an applicable code or a valid 26 stipulation. (Email stipulation for electronic service pursuant to CCP §§1013(g) and 27 1010.6. Email stipulated entered on April 8, 2020.) I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the 28 transmission was unsuccessful. 1 Executed on February 11, 2021, at San Diego, California 2 XX (STATE) I declare under penalty of perjury under the laws of the State of California that 3 the foregoing is true and correct. 4 ___________________________________________ 5 WILLIAM C. STANINGER 6 7 8 9 10 11 466 West Fallbrook Avenue, Suite 102 WEBB LAW GROUP, APC 12 Fresno, California 93711 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28