Judge: Colin Leis, Case: 21STCV40180, Date: 2023-02-08 Tentative Ruling

Case Number: 21STCV40180    Hearing Date: February 8, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Plaintiff Juan Resendez

RESPONDING PARTY:       Defendant Pepperdine University

Motion for Leave to File First Amended Complaint

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

            Plaintiff Juan Resendez (“Plaintiff”) filed this wrongful termination action on November 1, 2021 against Defendant Pepperdine University (“Defendant”).

Plaintiff now moves for leave to file a First Amended Complaint to add class action allegations and a cause of action for unfair competition. Defendant opposes and Plaintiff replies.

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.”  Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….”  (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number.  (Cal. Rules of Court, rule 3.1324(a).) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason why the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134(b).)

DISCUSSION

            Plaintiff’s complaint arises out of his employment with Defendant as a landscaper. (Compl. ¶ 6.) Plaintiff was twice placed on medical leave in 2019 stemming from back and leg injuries. (Compl. ¶¶ 8-9.) Pursuant to Defendant’s medical leave policy, Plaintiff was terminated in March 2020 under the guise of “voluntary resignation” after he failed to return to work at the conclusion of a six-month medical leave. (Phillips Depo., at 76:23-77:5.) Plaintiff alleges that Defendant’s medical leave policy is unlawful because leave is capped at six months after which point a disabled employee is considered to have voluntary resigned. Now, Plaintiff seeks to add class action allegations against Defendant based on the deposition testimony of Sean Michael Phillips—Defendant’s Vice President of Human Resources and designated person most knowledgeable—attesting to the validity of the policy and its application and enforcement among all of Defendant’s employees. (Gunther Decl., ¶ 4.) Plaintiff argues that the Phillips deposition testimony sets forth a strong legal and factual basis to include the proposed class allegations. (Mot., pp. 19-20.)

            In opposition, Defendant contends that Plaintiff has known of the policy since October 17, 2019 because Defendant advised Plaintiff of the policy by letter. (Resendez Depo., 77:12-78:8; Ex. 9.) Defendant also provided verified responses to Plaintiff’s Employment Form Interrogatories, Set One, on March 7, 2022 wherein Defendant specifically mentions the policy. (Sandhu Decl., ¶ 12, Ex. 5, at p. 8.) Thus, Defendant argues that Plaintiff has inexcusably delayed because Plaintiff could have included his class claims to the pleadings at least ten months ago.

            In reply, Plaintiff contends that Phillips’ testimony on December 15, 2022 made clear to Plaintiff for the first time that despite the written policy providing for exceptions to the six-month supplemental leave, Phillips was not aware of any exceptions to the policy. (Phillips Depo., at 88:4-7.) This testimony gives rise to the inference that others similarly situated as Plaintiff were subject to the rigid six-month supplemental leave under Defendant’s policy.

The court finds that Plaintiff has inexcusably delayed in seeking leave to amend. Because Plaintiff had notice of the policy since October 17, 2019, Plaintiff could have inferred that others similarly situated to Plaintiff were also subject to the allegedly unlawful policy. Plaintiff could have contemplated a class action lawsuit from the outset and sought discovery to confirm that theory. Moreover, Plaintiff again received notice of the policy on March 7, 2022, through Defendant’s verified responses to written discovery. Plaintiff could have sought leave to amend well before deposing Phillips in December 2022.

            The court also finds that Defendant has demonstrated that allowing Plaintiff’s proposed amendments would be prejudicial. Defendant filed its motion for summary judgment before Plaintiff filed his motion for leave to amend, and trial is set for May 22, 2023. Denying Plaintiff leave to amend does not undermine Plaintiff’s ability to oppose summary judgment, does not materially dilute the merits of his claims, and does not meaningfully hamstring his ability to prove his case at trial; denying leave to amend only means that a single-plaintiff case does not become a class action.

Plaintiff argues amendment to pleadings is liberally permitted even after a motion for summary judgment is filed. (Reply p. 6) But the cases Plaintiff cite do not support him. (Laabs v. City of Victorville (2008) 163 Cal.App.4^th 1242, 1257-1258; Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4^th 1263, 1280.) Those cases establish that the law permits a plaintiff to amend pleadings at the summary judgment stage to raise a triable factual issue that was implicit (“encompassed”) in the pleadings, even if the pleadings did not allege that factual issue. Here, however, Plaintiff’s proposed amendment to turn his case into a class action does not bring to the surface an implicit factual issue or cure “imperfect” pleading (Falcon at p. 1280) in the complaint. Plaintiff’s proposed class action amendment instead changes his case’s scope, which will necessarily require additional discovery, incur increased expenses, and delay the trial. Denial of leave to amend a pleading is not an abuse of discretion when allowing the proposed amendment would change the tenor and complexity of the complaint from its original focus. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) 

In sum, having found that Plaintiff has inexcusably delayed in seeking leave to amend and that such amendments would be prejudicial to Defendant, the court denies Plaintiff’s motion.

CONCLUSION

The motion is denied.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 8, 2023

_____________________________

Colin Leis

Judge of the Superior Court