Judge Douglas W. Stern, Case Number: 21STCV02017, Date: 2023-08-22 Tentative Ruling

Marcus Hudson, et al. vs. Browning-Ferris Industries of CA, Inc., et al.; 21STCV02017

Moving Parties: Plaintiffs Marcus Hudson and Melvin Lacey

Opposing Party: Defendants Browning-Ferris Industries of CA, Inc., Republic Services, Inc., and Consolidated Disposal Service, LLC

Plaintiffs Marcus Hudson and Melvin Lacey (Plaintiffs) filed this motion to file second amended complaint in order to add some factual allegations to their complaint. They claim that the facts that they wish to add are new facts that occurred after the filing of the First Amended Complaint. Plaintiffs argue that Defendants would not be prejudiced by these amendments because discovery has already been completed on these topics and no further delay would be caused. Plaintiffs want to add the following allegations to the complaint:

a. Lacey’s other job duties as an operations clerk/safety coordinator were also affected. Lacey’s job duties were given to other workers who were paid a higher hourly wage than Lacey. At or around late 2021 Lacey applied for multiple jobs at Sunshine Canyon landfill. In the recent past, Sunshine Canyon Landfill would waive some qualifications for internal applicants, but they did not do so for Lacey. Defendants strictly construed their requirements as pretext to deny Lacey a new position. For the position of Operator, Defendants failed to even provide Lacey a formal interview. SAC, Pg. 16 and 17, ¶ 69, lines 23 to 2.

b. The phrase “and positions,” was added to the sentence “Defendants subjected Plaintiffs to adverse employment actions, including but not limited to…denying them opportunities for certain assignments and positions.” SAC, pg. 21, ¶ 106, line 15, and SAC, pg. 22, line 21.

c. “and August 18, 2023,” was added to indicate an amended DFEH complaint was filed on that date. SAC, pg. 17, ¶ 70, line 5.

Defendants oppose the motion on the basis that Plaintiffs should have known of these new facts since at least April 2022. They argue that Plaintiffs unreasonably delayed in making the instant motion and Defendants would be prejudiced because they argue that they would need to have the right to depose Plaintiff Lacey again and would need to have the right to move for summary judgment again. Defendants also argue that this would add a new theory of recovery to the case.

Plaintiffs argue in their reply that Defendants would not be prejudiced because the trial has been continued to April 2024, so if Defendants needed to conduct more discovery, they would have the time to do so.

This court is authorized, in its discretion, to “allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars . . .” (CCP § 473(a)(1).) Code of Civil Procedure § 576, likewise, provides that “any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment to any pleading . . .” (CCP § 576.) The determination of whether to grant leave to file an amended pleading rests in the court’s sound discretion.

Leave to amend is to be liberally granted at any stage in the proceedings, up to and including trial. (Magpali v. Farmers Group, Inc. (1986) 48 Cal.App.4th 471, 487; see also County of Sanitation Dist. No. 2 of Los Angeles County v. Kern County (2005) 127 Cal.App.4th 1544, 1618 (noting that a plaintiff may be granted amendment even at the time of trial).) To overcome the policy of liberally granting amendments at any stage of litigation, a defendant must show both actual prejudice and inexcusable delay. (Magpali, 48 Cal.App.4th at 487.) Prejudice exists where an amendment to a complaint would result in a delay of trial; loss of critical evidence; added costs of preparation; and increased burden of discovery. (Id. at 486-488.)

As a preliminary manner, it should be noted that Plaintiffs’ motion makes reference to a proposed second amended complaint attached to the declaration of Plaintiff’s attorney, Lien Nguyen, but it does not appear that this declaration was filed with the Court.

Regardless, Plaintiffs’ proposed amendments do not appear that they would prejudice Defendants. The trial is not until April 2024, so there would be ample time to conduct any additional discovery. Further, Plaintiffs only seek to add some factual allegations to the complaint. They are not trying to add any new causes of action of action at this point. While it can certainly be argued that Plaintiffs probably should have known to add these amendments earlier, adding them now will not cause undue prejudice, and leave to amend is to be liberally granted.

Plaintiffs’ motion is granted, provided that they file the second amended complaint with the Court.