Case Number: KC068671 Hearing Date: January 17, 2018 Dept: J

Re: Blanca Franco, et al. v. H.W. Allstars, Inc., etc. (KC068671)

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Moving Parties: Plaintiffs Blanca Franco and Andres Franco

Respondent: Defendant H.W. Allstars, Inc. dba Doubletree by Hilton Claremont

Plaintiffs are employed as banquet servers with H.W. All Stars, Inc. dba Doubletree by Hilton Claremont (“Doubletree”). Plaintiffs contend that they are third party beneficiaries of banquet contracts which entitle them to certain distributions that they have not received. The complaint was filed on 8/23/16. The First Amended Complaint (“FAC”), filed on 8/31/16, asserts causes of action against Doubletree, Harry Wu (“Wu”) and DOES 1-25 for:

Third Party Beneficiary Breach of Contract (against Doubletree only)

Violation of Unfair Competition Law, Section 17200 et seq. of the Business and Professions Code (against Doubletree and Wu)

Fraud (against Doubletree only)

Declaratory Relief (against Doubletree only)

On 12/20/16, the court sustained Henry Wu’s (“Wu”) demurrer to the second cause of action and Doubletree’s demurrer to the third cause of action without leave to amend; at that time, the language “and on behalf of all others similarly situated” was ordered stricken from the FAC.

On 2/9/17, Doubletree’s motion for an order compelling arbitration was granted and the case was ordered stayed pending the completion of arbitration. A Status Conference re: Arbitration is set for 1/17/18.

Plaintiffs Blanca Franco and Andres Franco (“plaintiffs”) now move for an order granting them leave to file their proposed Second Amended Complaint. Plaintiffs represent that after Defendant H.W. Allstars Inc. dba Doubletree by Hilton Claremont’s (“Doubletree”) motion to compel arbitration was granted, plaintiffs re-filed their claims in arbitration, adding a Labor Code § 351 claim as well as class-wide allegations. An initial conference was held before the arbitrator, who subsequently ordered briefing and set a hearing on a number of initial issues, including who would pay for the arbitration and the inclusion of plaintiffs’ § 351 claim. Before the parties could submit their initial briefing to the arbitrator for a decision, Doubletree pulled out of arbitration. Plaintiffs seek to formally add (1) class-wide allegations and (2) a § 351 claim. These claims are premised on the exact same facts as the existing claims in this case. Doubletree will not be prejudiced by the proposed amendments because this case is still at a very early stage, due in part to Doubletree’s actions in compelling and then abandoning arbitration.

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” CCP § 473(a)(1); and see § 576. A motion for leave to amend must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments, (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where (by page, paragraph and line number) the deleted allegations are located, and (3) state what allegations are proposed to be added to the previous pleading, if any, and where (by page, paragraph, and line number) the additional allegations are located. California Rules of Court (“CRC”) Rule 3.1324(a). Additionally, a separate declaration must accompany the motion and must specify (1) the effect of the amendment, (2) the reason why the amendment is necessary and proper, (3) the time when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier. CRC Rule 3.1324(b).

Plaintiffs’ counsel has not filed a supporting declaration, as required by CRC Rule 3.1324(b); accordingly, the motion is denied. The court also advises counsel for plaintiff that all class actions must be filed in the Central District pursuant to Los Angeles Superior Court rule 2.3.