Judge: Curtis A. Kin, Case: 21STCV05219, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV05219    Hearing Date: December 6, 2022    Dept: 72

MOTION FOR LEAVE TO FILE

FIRST AMENDED COMPLAINT

Date:                 12/6/22 (8:30 AM)                 

Case:                Gema Cisneros v. M7 Holdings LLC et al. (21STCV05219)

TENTATIVE RULING:

Plaintiff Gema Cisneros’ Motion for Leave to File First Amended Complaint is GRANTED IN PART.

Defendants M7 Holdings LLC, Timoteo Chilin, and Julian Michael Monfared’s request to take judicial notice of the Complaint is GRANTED, but only for the existence of the document, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)  Defendants’ request to take judicial notice of the request for dismissals filed on December 7, 2021 and March 14, 2022 are GRANTED, pursuant to Evidence Code § 452(d).

Plaintiff Gema Cisneros moves for leave to file a First Amended Complaint (“FAC”). Plaintiff seeks to add a cause of action for Negligent Hiring, Supervision, or Retention of. Although not expressly noted by plaintiff in the instant motion, plaintiff’s proposed First Amended Complaint also contains a new cause of action for Violation of Civil Code Section 51.7.

Defendants contend that the facts upon which plaintiff bases the proposed FAC are not new. However, plaintiff never alleged in the original Complaint that Monfared would review video camera footage. Plaintiff only alleged that a representative of human resources stated that video camera footage is deleted after a few hours. (Compl. ¶ 29.) Plaintiff persuasively contends that she was not aware of the Negligent Hiring, Supervision, or Retention of Employee claim until she deposed Monfared as the Person Most Knowledgeable for defendant M7 Holdings, LLC. (Navab Decl. ¶ 4.) Even if plaintiff delayed in bringing the instant motion (Tokar Decl. ¶ 8), defendants would not be unduly prejudiced with the filing of the FAC because the proposed claims rest on the same general set of facts as the Complaint. (Cf. Complaint ¶¶ 15, 16, 18-22, 26, 29, 31 with Proposed FAC ¶¶ 16, 17, 19-21, 25, 31, 33-35; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65 [absent showing of prejudice, delay in seeking an amendment alone does not justify denial of leave to amend].)

Defendants cite no authority for the purported requirement for plaintiff to provide deposition transcripts to support a motion for leave to amend a complaint. Plaintiff’s averments regarding when the facts giving rise to the amended allegations were discovered and why the request for amendment was not made earlier are sufficient. (See Rule of Court 3.1324(b); Navab Decl. ¶ 4.)

The Court reserves the issue of statute of limitations, as well as the issue of whether a negligent hiring claim is covered by workers compensation exclusivity, for demurrer to the First Amended Complaint. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“[T]he preferable practice [is] to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”].)

For the foregoing reasons, the Court GRANTS plaintiff’s motion as to the Negligent Hiring, Supervision, or Retention of Employee cause of action.

However, because plaintiff’s motion does not expressly mention the proposed Violation of Civil Code Section 51.7 cause of action, either in the notice of motion, points and authorities, or the supporting declaration, the Court DENIES plaintiff’s motion to the extent that plaintiff seeks to add a cause of action based on Civil Code § 51.7. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [“As a general rule, the trial court may consider only the grounds stated in the notice of motion”].)

Within five (5) court days hereof, plaintiff Gema Cisneros is ordered to file her First Amended Complaint as proposed in the motion but without a cause of action for Violation of Civil Code Section 51.7.