Motion for Leave in DANNY ACOSTA VS UNIVERSAL PROTECTION SERVICE LP ET AL| Trellis.Law

On April 18, 2018 a Motion,Ex Parte was filed involving a dispute between Acosta Danny, and Allied Universal, Universal Protection Service Gp Inc., Universal Protection Sevice Lp, Unknown Luis Last Name, Unknown Pierre Last Name, for civil in the District Court of Los Angeles County.

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SCOTT CUMMINGS (SBN: 204111)
1 LEE FRANCK (SBN: 229055) FHLED
1025 West 190th Street, Ste 200 “‘}§’,ff,“,f’,,, ‘Z;'?f,ff_'j,',{:f“'“
3 Gardena, CA 90248
' , Telephone: 310-295-2195 NOV 1 4 2018
4 Facsimile: 310'295'2180 Sherri R. canca, mccuuve ufcer/Clerk
1 5 . . air .913!’
Z Attorneys for Plaintiff Danny Acosta By Heather ‘gum J4’ D°P'"3'
—— 6
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....... 7
‘O: SUPERIOR COURT STATE OF CALIFORNIA
3‘ ' 8 ..
3 COUNTY OF Los ANGELES
9
10 DANNY ACOSTA, g Case Number: BC702634

O 11 Plaintiff» 3 PLAINTIFF DANNY ACOSTA’S NOTICE
'_ $3 12 ) OF MOTION AND MOTION FOR LEAVE
if 5)‘ Vs. ) TO FILE A FIRST AMENDED
12 E“ E 13 ) COMPLAINT AGAINST ALL
:2: 3 3 UNIVERSAL PROTECTION SERVICE LP' ) DEFENDANTS
‘f ‘E 5. 14 UNIVERSAL PROTECTION SERVICE’GP,, I
§ § § 15 INC.; ALLIED UNIVERSAL; LUIS (LAST ) D_a‘°‘ March 7» 2°19 ’ '
:2‘ 2 NAME UNKNOWN); PIERRE (LAST NAME 3 Elma 31303“-
E g 0 16 UNKNOWN) and DOES, 1 to 100, inclusive, ) ePa“m°“‘- 37
D In
g 17 Defendam 3 RES ID# 181106363581
18 3
19 )
)
20 mm-
21 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: ‘

W 22 PLEASE TAKE NOTICE that on March 7, 2019 at 8:30 a.m., or as soon thereafter as counsel

may be heard in Dept. 37 of the above entitled court, located at 111 N. Hill Street, Los Angeles, CA

, 24 90012, Plaintiff DANNY ACOSTA, by and through his attorneys of record, Cummings and Franck,
I . i_-,7 . . . . .
l 25 P.C., will hereby request of the Court an order for leave to le a First Amended Complaint to state

! 26 another cause of action against all Defendants.

I 27 This request is made pursuant to the California Code ofCivil Procedure sections 473(a) and

28 576 as well as pursuant to California Rule of Court 3.1324. Plaintiff seeks leave to file a rst amended

i
PLAINTlFF’S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AGAINST ALL
DEFEN DANTS
1 complaint as to all Defendants in order to state another cause of action against Defendants

-——‘————2 VERSAf7PR6TEGTI6N*SERVI€E7L?‘;ijNIVERSAL*PR6TECTI6N’SERVI€EGP; ., ‘*——
3 ALLIED UNIVERSAL; PIERRE BAKER; and DOES, l to 100 as well as to state additional facts in

4 the general allegations and in Plaintiff s other FEHA causes of action for Retaliation and Harassment o .
5 the basis of Plaintiffs religion and for requesting / taking religious accommodations.

6 This motion will be made on the grounds that this amendment is timely requested based 0

7 new information of a viable and meritorious cause of action, will not cause any unfair prejudice t

8 Defendants in this action, and will best serve the ends ofjustice and judicial economy.

9 This motion is based on this notice, the attached memorandum of points and authorities, the

10 Declaration of Lindsey M. Crismon, Exhibits, and on such other evidence and arguments that the Court

11 may allow or consider.

0. § 12
. I-

;“ § 13 Date: Novemberl3, 2018 Respectfully Submitted,
2 ‘cf; 3
E <53 5 14 CUMMINGS & FRANCK, RC.
«/2 3 Z 15
2 : 3°:
g E 5 16 . \- \

Q é"—~ 17 BY‘ Lindsey
. .~ ‘
M. Crismon
18 Attorney for Plaintiff Acosta
19

20 '
21 I \

23
II

25
I O

28
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PLAINTlFF’S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AGAINST ALL
DEFENDANTS
l
O I

1 MEMORANDUM OF POINTS AND AUTHORITIES

-‘-—"—‘ . NTROBU€T10 —-——

3 This Application is made pursuant to the California Code ofCivil Procedure sections 473(a)

4 and 576 as well as pursuant to California Rule of Court 3.1324, as Plaintiff seeks leave to amend his

5 Complaint as to all Defendants to assert claims of discrimination, harassment, and retaliation based on

6 Plaintiffs religion, his religious beliefs, and his requests for a reasonable religious accommodation

7 under the Fair Employment and Housing Act (hereinafter “FEHA”).

8 These claims are timely and proper as Plaintiffs last date of employment was in December of

9 2017, and he received a right to sue from the Department of Fair Employment and Housing (hereinafter

10 “DFEH”) on November 2, 2018 and is seeking to le his Amended Complaint well within the 1-year

11 statute of limitation for FEHA claims from the time of receiving the DFEH right to sue letter.

Q E 12 Plaintiff seeks to assert two new claims which will be Causes of Action 19 & 20 and to amend
as. co 00
E23“ § 13 his existing Causes of Action 3, 4, and 5 as well as his general allegations to state a claim for

E E 5 14 discrimination, harassment retaliation, and failure to prevent the same, due to his religious beliefs and

I g § § 15 requests for a reasonable religious accommodation..Plaintiffs claims of based on his religion and his

g E S 16 requests for a reasonable religious accommodation directly relate to the subject matter of the existing

0 Q 17 controversy between the parties, involves the same witnesses, the same facts, and the same parties as

18 Plaintiffs present causes of action, and revolves around inquiries into many of the same issues.

19 Permitting amendment will not result in prejudice to Defendants as Plaintiff notied

20 Defendants of his intent to amend his Complaint prior to his deposition and prior to completion of

I 21 the rst round of discovery Allowing Plaintiff to le a First Amended Complaint will promote the

22 efcient resolution of all claims between the parties.

I 23 As such, the Court should GRANT Plaintiffs request for leave to le a First Amended

24 Complaint as to all Defendants under the liberal standard applied by section 473 of the California Code _
‘ 25 ofCivil Procedure.

26 II. BRIEF STATEMENT OF FACTS -

27 Plaintiff Danny Acosta led his Complaint on April 18, 2018 against Defendants UNIVERSAL

28 PROTECTION SERVICE, LP; UNIVERSAL PROTECTION SERVICE GP, INC.; ALLIED

PLAINTIFPS MOTION FOR LEAVE TO FILE All-“IRST AMENDED COMPLAINT AGAINST ALL
DEFENDANTS
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1 UNIVERSAL; PIERRE BAKER; and DOES, 2 to 100. Plaintiff s Complaint stated 18 separate Causes

‘"——“‘—i wsDAwmnmWm$%&5TRamwDnbA nwUnW T—"‘‘
3 Service LP, Universal Protection Service GP, Inc., Allied Universal, and Does 1-100. Cause of Action

. 4 number 4 is pled against all Defendants, including Pierre Baker. See Plaintiffs Original Complaint.

5 On May 29, 2018, Defendant Universal Protection Service LP served on Plaintiff a Motion to

6 Compel Arbitration. Defendant’s motion was set for hearing on August 3, 2018. Thereafter, the Parties

7 waited to commence discovery until after the court heard Defendant’s motion regarding arbitration in

8 August of 201 8. The case was, for all intents and purposes, informally stayed from May of 2018 to

9 August of 201 8, pending resolution of the Motion to Compel Arbitration. Declaration of Lindsey M.

10 Crismon, 1] 4.

11 On August 3, 2018, the Court denied Defendant’s Motion to Compel Arbitration, and shortly

Q E 12 . thereafter the Parties commenced discovery. Plaintiff served initial discovery on August 17, 2018, and
o. co oo
% §, 13 Defendant served its initially discovery on August 24, 2018. The Parties are currently in the process of

E (E 5 14 meeting and conferring regarding the responses to both Parties’ initial discovery. Decl. of Crismon, 1] 5.

A §§ 15 On August 24, 2018, Defendant Universal Protection Service LP d/b/a Allied Universal Securit
g E E 16 Services served Plaintiff with an Answer to Plaintiffs Original Complaint, and on October 17, 2018

0§ 17 during the Case Management Conference the Court set a trial date for March 3, 2020 at 10:00 a.m.
18 Decl. of Crismon, 11 6.
19 A. It Was Recently Discovered That Plaintiff Has A Viable Claim For Religious
Discrimination, Harassment, And Retaliation Based On His Religion, His Reports,
20 And His Requests For Religious Accommodation
I 21 Days before Plaintiffs deposition it was discovered that Plaintiff had a viable claim for

22 discrimination, harassment, and retaliation based on Mr. Acosta’s religion, taking/requesting religious

I 23 accommodations, and reports to Defendants of its failure to provide him with religious V
} 24 accommodations. Decl. of Crismon, 1] 7. _ _ V
25 During Plaintiffs employment, he was subjected to numerous illegal actions taken by

0 26 Defendants, including race discrimination, race harassment, retaliation for complaints of race

27 discrimination and harassment, CFRA leavevinterference / discrimination, CFRA leave harassment,

i 28 retaliation for requesting / taking CFRA leave, retaliation for reporting CFRA leave interference /

PLAlNTIFF’S MOTION FOR LEAVE TO FILE AZFIRST AMENDED COMPLAINT AGAINST ALL
DEFENDANTS
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1 discrimination and harassment, failure to provide Kin Care, failure to provide Paid Sick Leave, non-
'paymentofwagesjuntirnelypayrnenrofwagesffailureTo"provide“eamingstatements7faure*to“pr '

3 rest breaks, failure to provide meal breaks, failure to provide restrooms, and so on. Original Complaint

. 4 1-36; Decl. of Crismon, 1] 8. . . .

5 In addition to the numerous claims that Plaintiff has from his employment with Defendants,

6 Plaintiff does not speak English as his rst language. This language barrier and the volume of illegal

7 activities that Defendants subjected Mr. Acosta too during his employment meant that it took numerous
8 in-depth conversations before Plaintiffs counsel understood the nature of Mr. Acosta’s employment.
9 Decl. of Crismon, 1] 10. P

- 10 Even then, it was not until Plaintiff had received documentation from Defendants’ in response t
11 Plaintiffs requests for production of documents that Plaintiff discovered that Mr. Acosta had a viable

Q E 12 claim for discrimination, harassment, and retaliation based on his religion and his requests for religious
Q, V, w .
é“ § 13 accommodations. Amongst these documents are timesheets, schedules, and emails evidencing that there

E 5, 5 14 was a viable claim that Defendants failed to provide Mr. Acosta with time off from work on Sundays

2 g E 15 I after Mr. Acosta requested to take time off from work on Sundays to attend church. Decl. of Crismon, I

g E E; 16 11. Defendant’s documents production occurred on October 12, 2018 with a supplemental production

0 § 17 on October 29, 2018, containing emails and a schedule for December of 2017. Decl. of Crismon, 1] 12.
F 13 B. Plaintiff’s New Causes Of Action Are Timely And Meritorious
19 Plaintiffs last day of employment with Defendant was in December of 2017. At that time

20 Defendants continued to refuse to provide Mr. Acosta with Sundays off of work for him to attend

21 I church and Defendants’ discriminatory and retaliatory conduct led to his constructive discharge in

22 December of 2017. Decl. of Crismon, 1] 9.

23 Plaintiff timely and properly notified the DFEH of his intent to assert a FEHA claim based 0

24 religion and religious accommodation on November 2, 2018. Plaintiff received a right to sue on 2

25 November 2, 2018. Ex. 2. This was timely as it was within 1-year of Defendants’ last adverse action

26 against Plaintiff. Decl. of Crismon, ll 13.

27 Now Plaintiff timely seeks to amend his Complaint with weeks of receiving the DFEH right to

28 sue letter, making his amendment timely. Decl. of Crismon, 1[ 14.
3
PLAINTIFPS MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AGAINST ALL
I DEFEN DANTS
‘ 0 ~ 0

E C. There Is No Prejudice To Defendant As Plaintiffs Counsel Notied Defendant’s
1 Counsel Of Plaintiffs Intent To Amend His Complaint To Assert These New Causes
_______2 (1£ActionAndJ1J:Ias.(1nl;LB.een3_Mon1hsSince_Disco1ergLCo ______

3 There is no prejudice to Defendants if Plaintiff is permitted to amend his Complaint. Plaintiffs

'_ 4 counsel notied, Defendants’ counsel of Plaintiffs intent to amend his complaint to assert religion and

5 religious accommodation based FEHA claims on November 5, 2018. Mr. Acosta’s deposition was
6 scheduled to proceed on November 7, 2018, and did proceed. Decl. of Crismon, 11 15-19.

7 Defendants’ counsel took Day 1 of Mr. Acosta’s deposition on November 7, 2018, and intends

8 to take Day 2 on November 14, 2018, which is after Plaintiffs counsel provided Defendants’ counsel

9 with a copy of the Proposed First Amended Complaint. Decl. of Crismon, 11 17, Ex. 3, 4. Moreover,

‘ 10 Plaintiff included in his supplemental responses to Defendant’s discovery the witnesses, facts, and

11 documentsito Defendants upon which Plaintiff bases these additional claims in his First Amended

‘ ' § 12 Complaint. Decl. of Crismon, 1] 18, Ex. 5 — Plaintiff s Supplemental Responses.

E. 3 13 On November 9, 2018 Plaintiff s counsel emailed Defendants counsel, Amir Aimzadeh and

E E5: 3 14 Brent Douglas about stipulating to permit Plaintiff to le a First Amended Complaint. Plaintiff

§ § :2‘; 5 requested a response by close of business on November 12, 2018. At the time of nalizing this motion 1

(E? E E 16 for ling, Plaintiffs counsel had not received any response from Defendant’s counsel regarding .

5/) Q 17 whether Defendants would stipulate. Decl. of Crismon, 11 19.

18 III. LEGAL ARGUMENT
19 A. The Court Should Grant Plaintiff’s Request For Leave To Amend His Complaint
As To All Defendants Based On The Court’s Liberal Policy Of Granting Leave To
20 Amend
21 The Court may, in furtherance ofjustice, and on any terms as may be proper, allow a party to

V 22 amend any pleading. Cal. Code Civ. Proc. § 473(a)(1). The Court may allow amendments of any

23 pleading at any time before or after commencement of trial. Cal. Code Civ. Proc. § 576; see also
’v-2.;
1 2 24 Redondo Improv. Co. v. Redondo Beach (1934) 3.Cal. App. 2d 299, 303-304 (granting the plaintiffs

25 a reasonable time within which to amend when the plaintiffs requested amendment during trial);

I 26 Kroplin v. Huston, 79 Cal. App. 2d 332, 340 (1947). _

27 The court’s discretion will usually be exercised liberally to permit amendment of the

28 pleadings. Nestle v. Santa Monica (1972), 6 Cal.3d 920, 939 (nding that the court should provide

. PLAlNTlFF’S MOTION FOR LEAVE TO FILE A4FlRST AMENDED COMPLAINT AGAINST ALL
DEFENDANTS
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1 the plaintiff with leave to amend when immediately prior to trial the court found the plaintiffs

“‘——‘—*‘2 cmmrbmeghgmwmmmngvmimimmieginsudemasmepiamtfofmdowega v
V 3 viable theories for the claims); Howard v. County ofSan Diego (2010) 184 Cal. App. 4th 1422, 1428

4 (reversing the ruling of the trial court and granting the plaintiff leave to amend after. dismissal of

5 plaintiffs claims at summary judgment without prejudice for failure to exhaust administrative

6 remedies when the plaintiff subsequently remedied the deciency and requested leave to amend six

7 months after the dismissal).

8 This liberal policy for amendment is rmly stated in Morgan v. Superior Court,

9 “[i]f the motion to amend is timely made and the granting of the
10 motion will not prejudice the opposing party, it is error'to refuse
permission to amend and where the refusal also results In a party ‘
11 being deprived of the right to assert ameritorious cause of action or a
' § 12 . meritorious defense, it is not only error but an abuse of discretion.”
2 g O0 Morgan (1959) 172 Cal.App.2d 527, 530
C; :3" § 13 The policy favoring amendment is so strong that it is a rare case in which denial of leave to

0% in L: 14 amend can be justied. Howard, 184 Cal. App. 4th at 1428. Leave to amend should be denied only

E § E: 15 where the facts are not in dispute, and the nature of the plaintiffs claim is clear, but under

E E 5 16 substantive law, no liability exists and no amendment would change the result. Id.

0 § 17 Based on the court’s discretion to liberally permit amendment, Plaintiff requests leave to

18 amend to assert timely and meritorious religious discrimination and religious retaliation claims

19 against Defendants.

20 B. Plaintiff’s Proposed Amendment is Timely And States a Meritorious Claim

21 Under the FEHA section 12940 et. seq., an employee may bring a civil action to recover for

22 religious discrimination and religious retaliation. Prior to ling a civil action under the FEHA, a g
23 ‘ plaintiff must provide notice to the DFEH and receive a right to sue. Cal. Gov. Code § 12960(c).

. 24 An employee must notify the DFEH within 1-yearof the adverse action (Cal. Gov. Code § .
iii? 25 12960(c)), and thereafter, the employee has 1-year from issuance of the right to sue to le a civil
1 26 lawsuit (Cal. Gov. Code § 12965(b)).
1 27 Here, Plaintiffs religious based FEHA claims are timely and proper. The last adverse action
28 that Defendants took against Mr. Acosta was his constructively discharge in early December of

PLA1NTlFF’S MOTION FOR LEAVE TO FILE ASFIRST AMENDED COMPLAINT AGAINST ALL 1
DEFENDANTS
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1 2017. This makes Mr. Acosta’s DFEH notice timely as it preceded the adverse action by 1 year, and
if nmlam eWkdWww ' *‘

3 in November 2, 2018.

4 . Additionally, Plaintiffs claims are proper as the religious discrimination, religious .

5 retaliation, and failure to reasonably accommodated Mr. Acosta’s religious beliefs were part of the
6 constructive discharge both in May of 2017 and December of 2017. Mr. Acosta’s last date of work

7 was in early December of 2017. As such Plaintiff was required to le a DFEH complaint on or
8 before December of 2017.

9 Plaintiff timely and properly notied the DFEH of his intent to assert a FEHA claim based 0

10 religion and religious accommodation on November 2, 2018. Plaintiff received a right to sue on
11 November 2, 2018. Ex. 2. Thus, Plaintiff must le his lawsuit asserting these additional claims

Q E 12 within 1-years. of November 2, 2018, which is by November 2, 2019.
o- co co
é“ § 13 Plaintiffs religion and religious accommodation based FEHA claims is directly related to the

E § 5 14 subject matter of the existing controversy between the Parties, involves the same witnesses, same

0% E; 15 facts as to Plaintiffs present causes of action, same parties, and inquiries into many of the same 9

g E E 16 issues, and will not result in prejudice to the Defendants.

0 § 17 Plaintiff asserted in his Original Complaint causes of action against Defendants for

I 18 Defendants’ constructive discharge of Mr. Acosta and Defendants’ discriminatory, harassing, and

19 retaliatory conduct. See Plaintiffs Original Complaint — Causes of Action Nos. 1, 2, 3, 4.

20 Allowing Plaintiff to file a First Amended Complaint will therefore promote the efcient

A 21 resolution of all claims between the parties. Decl. of Crismon, § 20.

22 C. There Is No Prejudice To Defendants In Granting Plaintiff Leave to Amend
23 The proposed amendment will not prejudice Defendants. It will not delay the trial nor will it

24 necessitate added preparation costs. Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 490.

25 I Even still, delay alone in seeking an amendment, absent a nding of prejudice, is insufcient ground for

25 denying a motion to amend. Higgins v. Del Faro (1981) 123 Cal. App. 3d 558-564-65.

27 No prejudice will result to Defendants if Plaintiff is granted leave to amend as the trial date is

28 over 1 year away, the religion and religious accommodation based FEHA causes of action are based on
6 .
PLAlNTIFF’S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AGAINST ALL
DEFENDANTS
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1 the same circumstances and events as Plaintiff s other causes of action in his Original Complaint.
_—'——%— mover:mThis?mlystageoigaorBefendm1ts’aremothmdemdiwdiscUvay*a
3 initial discovery has been propounded, Plaintiff included in his responses to Defendant’s initial A
. 4 discovery. the information related to his claims based on religion and religious accommodation, and .

5 Plaintiff notied Defendants of Plaintiffs intent to amend his Complaint prior to Plaintiffs deposition.

6 Defendants will be unaffected as the additional causes of action and additional basis for

7 Plaintiffs FEHA claims because Defendants were apprised of these claims while there was more than

8 adequate time for Defendants to conduct discovery on these additional claims and because the i

9 witnesses, facts, and documents are the same as those supporting Plaintiffs claims in the Complaint.

10 Defendants will not be prejudiced as Plaintiff is timely and properly asserting a meritorious

11 cause of action. Further, there is no prejudice as the trial is not until March of 2020 and only limited

0: E 12 discovery has been conducted. Moreover, Plaintiffs counsel notied Defendants’ counsel of these
c... U)
CE“ § 13 additional claims based on religion and religious accommodations prior to Plaintiffs deposition and

E ;‘-f, (<5 14 provided the facts, witnesses, and documents that support these additional claims in Plaintiffs

2 g E“ 15 responses to Defendants’ initial written discovery. ' 4 i P
g E S 16 Yet, if leave to amend is denied, then Plaintiff will be deprived of asserting a timely and

U Q 17 meritorious cause of action against Defendants which is an abuse of discretion.

H 18 D. Plaintiff Satises All the Requirements for Filing This Type of Motion

19 Pursuant to the California Rules of Court 3.l324(a), when ling a motion for leave to amend a

20 complaint, the filing party must: i
21 (1) Include a copy of the proposed amendment or amended pleading, which
22 must be serially numbered to differentiate it from previous pleadings or
amendments;
23 (2) State what allegations in the previous pleading are proposed to be
24 deleted, if any, and where, by page, paragraph, and line number, the
l ' 25 " deleted allegations are located; and " ’
(3) State what allegations are proposed to be added to the previous pleading,
26 if any, and where, by page, paragraph, and line number, the additional
‘ 27 allegations are located."
l 28 Here, Plaintiff proposes to make the following additions to the previous pleading:

l 7
l PLAlNTlFF’S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AGAINST ALL
DEFENDANTS
1 Insert Defendant Pierre Baker’s full name in the pleadings (4:3-4 / 1] 7);
Insert factually allegations in the general allegations section in support of
‘(*3 , ;
L 3 Asserting another facts in Plaintiff’ s Cause of Action No. 3 for Retaliation
for Opposing Practices Forbidden by FEHA to support his another claims
— 4 I based on Religion and his Requests for Religious Accommodation (28: 12- »
V 5 14, 29:14-16/11116, 120);
Asserting another facts in Plaintiff s Cause of Action No. 4 for Hostile Work
6 Environment Harassment in Violation of FEHA to support his another
7 1 claims based on Religion and his Requests for Religious Accommodation
(33:12-15, 34:1-3, 34:6-7/[137, 140,141);
8 Assert another causes of action for Religious Discrimination and Failure to
‘ 9 Accommodate Religious Practices in Violation of FEHA, Causes of Action
Nos. 19 & 20 (85:13-91:15 /11 403-437); and
10 To make clerical corrections, including, updating the numbering of the
11 paragraphs included from Plaintiffs general allegations into Plaintiffs
8 specic causes of action (1 1 :25-27 / 11 38, 15:23-24/1] 54, 28:7-9 /1] 115,
0. $3 12 33:4-6/11136, 37:18-20 /1] 155, 40:20-22 /1] 173, 43:20-22 /11 188, 46:5-6/
a.‘ :71 go 202, 49:S-6/ 217, 51:28-52:1 / 228, 55:22-23/ 244, 58:22-23/ 260,
5“ E" V 2', 13 60:28-61:1/‘H 278, 63:13-15 /1[ 293, 75:12-14 /1] 345, 77:25-27 /1[ 363,
E 5 2 14 81:28 /11 384, 84:8-10 /11 395) and changing “her” to “his” (397 /11 165,
:5 E 3. , 39:15-16/‘H168,70:4-6/11320) , . .
m ° 2 15
2 E § Plaintiff also proposes to make the following deletions to the previous pleading in order to x a
2 "’ < 16
LE) g 0 previously unnoticed clerical error whereby Plaintiff repeated the specic factual allegations for
“ 17
-S Plaintiffs Causes of Action Nos. 11 & 14 twice in his Complaint (Plaintiffs Original Complaint, 77:9-
18
84:10 /11 344-382).
19
Further, under Rule 3.1324(b) the motion must be accompanied by a declaration that species:
20
_ (1) The effect of the amendment;
21
(2) Why the amendment is necessary and proper;
'2??? 22
(3) When the facts giving rise to the amended pleading were discovered; and
23 .
(4) The reasons why the request for amendment was not made earlier."
I 24
l ‘ Here, the effect of the amendment is that Plaintiff has added two other causes of action asserting
1 25
violations of the FEHA based on religion and religious accommodation against the same Defendants,
26
while also adding facts to the General Allegations to support these claims and adding facts to Plaintiffs
‘ 27
current Causes of Action Nos. 3 & 4 for Unlawful Retaliation and Harassment under the FEHA based
28
8
PLAlNTlFF’S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AGAINST ALL
DEFENDANTS
C O

1 on these protected classes — religion, requesting / taking religious accommodations, and reporting

" discnmmatiormndfametUproviderehgious*acConmmdatiUnsTj“‘—**—*——

3 The amendment is necessary and proper as this is Plaintiffs rst request for leave to amend, it i

4 still early in the stages of litigation, Defendants have more than sufficient time to conduct thorough

5 discovery, and Plaintiffs additional FEHA claims are timely and meritorious as explained above.

6 Plaintiff is entitled to assert a meritorious and timely claim. ,

7 The facts giving rise to the amended pleading were recently discovered during continued

8 conversations with Mr. Acosta in preparation for his deposition while having documentation produced

9 by Defendant as a reference for these further discussions. These documents included timesheets,

10 schedules, and emails reecting the various locations, time periods, and days of the week that NH.

11 Acosta worked. From these documents and l\/Ir. Acosta, it is evident that Plaintiff has a viable claim

Q E 12 under the FEHA based on his religion and request for religious accommodations. The mere fact that the
D_ W .
Q2 g 13 new matter may have been known to the pleader at the time of filing his original pleading is not

E (E 5“ 14 sufcient ground for denying the right to amend. Kroplin v. Huston (1947) 79 Cal. App. 2d 332.

g E E 15 Plaintiff is now requesting to amend. his complaint, as opposed to earlier, as the evidence that

E E E; 16 Plaintiff has a viable claim based on his religion and requests for religious accommodation under the

0 § 17 FEHA were only recently discovered during continued and in-depth conversations with Mr. Acosta

18 about the documents that Defendants recently produced. These documents — timesheets and emails —

19 were solely in Defendants’ possession, and Plaintiff did not have access to them until October of 201 8

20 when they were produced by Defendants.

21 III. CONCLUSION A A ,A
22 Based on the foregoing, Plaintiff respectfully requests that this Court grant his request for leave

23 to file a First Amended Complaint as to all Defendants.

24 Date: November 13, 2018 ' Respectfully Submitted, .

I 25 CUMMINGS & FRANCK, P.C.
1 26 ‘ 6 J 9 "
1 27 BY . ’ '
Lindsey M. Crismon
28 Attorney for Plaintiff Acosta

PLAlNTlFF’S MOTION FOR LEAVE TO FILE A9FIRST AMENDED COMPLAINT AGAINST ALL
DEFENDANTS
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1 DECLARATION OF LINDSEY M. CRISMON

' , ’ndsey‘MT€risnroI17he1eby'state*aIrddeclare*a‘s*follUwsr’m'

3 1. I am an attorney at law duly authorized to practice law before all the courts of the State of

4 California. I am the attorney of record for the plaintiff. I am familiar with the les, pleadings and facts
5 in this case and could and would competently testify to the following facts based upon my own personal
6 knowledge or infomiation and belief; -

I 7 2. Plaintiff seeks leave to amend his Complaint under the California Code ofCivil Procedure
8 sections 473(a) and 576 as well as pursuant to California Rule of Court 3.1324 as to all Defendants to

9 assert claims of discrimination, harassment, and retaliation based on Plaintiffs religion, his religious
10 beliefs, and his requests for a reasonable religious accommodation under the Fair Employment and
i 11 Housing Act (hereinafter “FEHA”). Attached as Exhibit 1 is a true and correct copy of Plaintiffs

O: E 12 Proposed First Amended Complaint.
:2. co co
E42)“ § 13 3. Plaintiff Danny Acosta filed his Complaint on April 18, 2018 against Defendants

E g 5 14 UNIVERSAL PROTECTION SERVICE, LP; UNIVERSAL PROTECTION SERVICE GP, INC.;.

I §§ 15 ALLIED UNIVERSAL; PIERRE BAKER; and DOES, 2 to 100. Plaintiffs Complaint stated 188
E E’ E 16 separate Causes of Action. Causes of Action numbers 1-3 & 5-18 are pled only Against Defendants

0 § 17 Universal Protection Service LP, Universal Protection Service GP, Inc., Allied Universal, and Does 1-

18 100. Cause of Action number 4 is pled against all Defendants, including Pierre Baker.

19 4. On May 29, 2018, Defendant Universal Protection Service LP served on Plaintiff a Motion

20 to Compel Arbitration. Defendant’s motion was set for hearing on August 3, 2018. Thereafter, the

I 21 Parties waited to commence discovery until after the court heard Defendant’s motion regarding

22 arbitration in August of 2018. The case was, for all intents and purposes, informally stayed from May 0

23 2018 to August of 2018, pending resolution of the Motion to Compel Arbitration.

24 5. On August 3, 2018, the Court denied Defendant’s Motion to Compel Arbitration, and _

25 shortly thereafter the Parties commenced discovery. Plaintiff served initial discovery on August 17,

i 26 2018, and Defendant served its initially discovery on August 24, 2018. The Parties are currently in the

l 27 process of meeting and conferring regarding the responses to both Parties’ initial discovery. 1

28 6. On August 24, 2018, Defendant Universal Protection Service LP d/b/a Allied Universal

PLAlNTlFF’S MOTION FOR LEAVE TO FILE AHl)?lRST AMENDED COMPLAINT AGAINST ALL
DEFEN DANTS
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1 Security Services served Plaintiff with an Answer to Plaintiffs Original Complaint, and on October 17,

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3 7. Days before Plaintiffs deposition it was discovered that Plaintiff had a viable claim for

. 4 discrimination, harassment, and retaliation based on Mr. Acosta’s religion,taking/requesting religious
5 accommodations, and reports to Defendants of its failure to provide him with religious

6 accommodations. ,

7 8. During Plaintiffs employment, Plaintiff alleges in his Complaint that he was subjected to

8 numerous illegal actions taken by Defendants, including race discrimination, race harassment,

9 retaliation for complaints of race discrimination and harassment, CFRA leave interference /

10 discrimination, CFRA leave harassment, retaliation for requesting / taking CFRA leave, retaliation for

11 reporting CFRA leave interference / discrimination and harassment, failure to provide Kin Care, failure

Q E 12 to provide Paid Sick Leave, non—payment of wages, untimely payment of wages, failure to provide

:::“ § 13 earning statements, failure to provide rest breaks, failure to provide meal breaks, failure to provide

E (E 5“ 14 restrooms, and so on.

Q; E if 15 9. Plaintiffs last day of employment with Defendant was in December of 2017 as evidenced I

g E 5 16 by the timesheets produced by Defendants, and Plaintiff alleges in his First Amended Complaint that J

I 0 § 17 the last adverse action taken against him was in December of 2017. Plaintiff alleges in his First

18 Amended Complaint that at that time Defendants continued to discriminate, harassment, fail to

19 accommodate, and retaliate against Mr. Acosta based on his protected classes including his religion, his

20 religious beliefs, and his requests for reasonable religious accommodations.

I 21 10. In addition to the numerous claims that Plaintiff alleges against Defendants, Plaintiff does

22 not speak English as his first language. This language barrier and the volume of illegal activities that

23 Defendants subjected Mr. Acosta too during his employment meant that it took numerous in—depth

24 conversations before Plaintiffs counsel understood the nature of Mr. Acosta’s employment. V

25 11. Even then, it was not until Plaintiff had received documentation from Defendants’ in

26 response to Plaintiff s requests for productio

Case Info

Judge

Richard J. Burdge Jr. Track Judge’s New Case

Case No.

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Document Filed Date

November 14, 2018

Case Filing Date

April 18, 2018

County

Parties

ACOSTA DANNY Plaintiff
ALLIED UNIVERSAL Defendant
AZIMZADEH AMIR Attorneys for Defendants
CRISMON LINDSEY MARIE Attorney For Plaintiff
CUMMINGS SCOTT OHARA ESQ. Attorneys for Plaintiffs
SIMON ALEXANDER W. Attorneys for Defendants
UNIVERSAL PROTECTION SERVICE GP INC. Defendant
UNIVERSAL PROTECTION SEVICE LP Defendant
UNKNOWN LUIS LAST NAME Defendant
UNKNOWN PIERRE LAST NAME Defendant
Lee Franck Attorneys for Plaintiffs
Brent Douglas Attorneys for Defendants
Melanie Ayala Attorneys for Plaintiffs

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Motion,Ex Parte: DANNY ACOSTA VS UNIVERSAL PROTECTION SERVICE LP ET AL

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