Judge: Elaine Lu, Case: 22STCV34620, Date: 2023-07-21 Tentative Ruling
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Case Number: 22STCV34620 Hearing Date: July 21, 2023 Dept: 26
|
HENRY
PINEDA, Plaintiff, v. NKRUMAH
ENTERPRISES, LLC; URBAN STREET VENTURES, INC.; ROSA HILL; CHARLES HILL,
et al., Defendants. |
Case No.: 22STCV34620 Hearing Date: July 21, 2023 [TENTATIVE] ORDER RE: CROSS-COMPLAINANT URBAN STREET VENTURES’ MOTION
FOR LEAVE TO FILE A FIRST AMENDED CROSS-COMPLAINT |
Procedural Background
On
October 28, 2022, Plaintiff Henry Pineda (“Plaintiff”) filed the instant
Private Attorney General Act (“PAGA”) claim against Defendants Nkrumah
Enterprises, LLC; Urban Street Ventures, Inc.; Rosa Hill; and Charles
Hill. On November 14, 2022, Plaintiff
filed a Doe amendment naming Nkrumah Enterprises, Inc. as Doe 1.
On
January 10, 2023, Defendant Urban Street Venutres, Inc. (“Cross-Complainant”)
filed a cross-complaint against Cross- Defendants Nkrumah Enterprises, LLC,
Rosa Hill, and Charles Hill seeking indemnity and declaratory relief.
On
July 11, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against
Defendants Nkrumah Enterprises, LLC; Nkrumah Enterprises, Inc.; Urban Street
Ventures, Inc.; Rosa Hill; and Charles Hill.
The FAC asserts twelve causes of action for (1) Failure to Pay Minimum
Wages, (2) Failure to Furnish Wage and Hour Statements, (3) Failure to Maintain
Payroll Records, (4) Failure to Provide Meal and Rest Period Compensation, (5)
Failure to Pay Overtime Compensation, (6) Failure to Pay Wages in a Timely
Manner, (7) Waiting Time Penalties, (8) Violation of Business & Professions
Code § 17200 et seq, (8) Wrongful Constructive Termination in Violation of
Public Policy, (10) Whistleblower Retaliation, (11) Failure to
Indemnify/Reimburse Necessary Expenditures Incurred During Discharge of Work
Duties, and (12) Civil Penalties under PAGA.
On
May 18, 2023, Cross-Complainant filed the instant motion for leave to file a First
Amended Cross-Complaint. No opposition
has been filed. On July 12, 2023, Cross-Complainant
filed a notice of non-opposition.
Legal
Standard
Code of Civil
Procedure § 473, subdivision (a)(1) states: “The court may, in furtherance of
justice, and on any terms, as may be proper, allow a party to amend any
pleading or proceeding by adding or striking out the name of any party, or by
correcting a mistake in the name of a party, or a mistake in any other respect;
and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion,
after notice to the adverse party, allow, upon any terms as may be just, an amendment
to any pleading or proceeding in other particulars; and may upon like terms
allow an answer to be made after the time limited by this code.”
Code of Civil
Procedure § 576 states that: “[a]ny 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 of any pleading or pretrial conference
order.”
Judicial
policy favors resolution of all disputed matters between the parties, and
therefore, courts have held that “there is a strong
policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97;
see also Ventura v. ABM Industries, Inc.
(2013) 212 Cal.App.4th 258, 268) [“Trial courts are bound to apply a policy of great
liberality in permitting amendments to the complaint at any stage of the
proceedings, up to and including trial where the adverse party will not be
prejudiced.”].)
Pursuant to California Rules of Court, rule 3.1324(a), a motion to
amend must: (1) include a copy of the proposed amendment or amended pleading,
which must be serially numbered; and (2) state what allegations are proposed to
be deleted from or added to the previous pleading and where such allegations
are located. Rule 3.1324(b) requires a
separate declaration that accompanies the motion, stating: “(1) the effect of
the amendment; (2) why the amendment is necessary and proper; (3) when the
facts giving rise to the amended allegations were discovered; and (4) the
reason why the request for amendment was not made earlier.”
Discussion
Proposed
Amendments
Cross-Complainant seeks to amend the complaint to add the
amount of potential indemnity sought. Specifically,
Cross-Complainant seeks to add reference to the $1,000,000.00 in damages being
claimed by Plaintiff and the $100,000.00 in attorney’s fees estimated to be
incurred. (Dreyfuss Decl. ¶ 3, Exh. A.) Cross-Complainant’s counsel states that this amendment
is necessary because Cross-Complainant did not originally specify any amount of
potential liability for indemnity.
(Dreyfuss Decl. ¶ 2.) Moreover,
“[s]ince there are potential flaws in the answers filed by [cross-defendants]
Nkrumah Enterprises LLC and Nkrumah Enterprises, Inc. because the general
counsel who signed them did not show his State Bar Number or clearly indicate
that he was filing them as attorney of record, it may be that they will be
stricken with defaults entered. The amendment to the cross-complaint is for the
purpose of specifying the potential indemnity amount in case of default.” (Dreyfuss Decl. ¶ 2.) Cross-Complainant has also provided a copy of
the proposed First Amended Cross-Complaint.
(Dreyfuss Decl. ¶ 3, Exh. A.)
“[T]rial courts are to liberally permit such
amendments, at any stage of the proceeding[.]” (Hirsa v. Superior Court (1981)
118 Cal.App.3d 486, 488–489.) Moreover,
to justify a denial of a motion for leave to amend, the delay must have caused
prejudice to the adverse parties. (See Fair
v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1147, [“[W]here there is no
prejudice to the adverse party, it may be an abuse of discretion to deny leave
to amend.”].) Here, the changes are
minor and merely clarify potential damages sought in case of default. Moreover, there is no indication of prejudice. Accordingly, Cross-Complainant’s motion for leave to file a First Amended Cross-Complaint
is GRANTED.
CONCLUSION AND ORDER
Cross-Complainant is to file the proposed First Amended Cross-Complaint
within five (5) days of notice of this order and serve the First Amended Cross-Complaint
on all cross-defendants within 30 days.
Moving Party is to provide notice and file proof of service of
such.
DATED: July ___, 2023 ___________________________
Elaine Lu
Judge of the Superior Court