Judge: Frank M. Tavelman, Case: 19PSCV00095, Date: 2023-03-10 Tentative Ruling

Case Number: 19PSCV00095    Hearing Date: March 10, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEFENDANTS’ MOTION IN LIMINE NO. 12 &

PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

Motion in limine

MP:     City of Pomona & Paul Capraro (Defendants)

RP:      James Suess (Plaintiff)

Motion for Leave to File Third Amended Complaint

MP:     James Suess (Plaintiff)

RP:      City of Pomona & Paul Capraro (Defendants)

BACKGROUND AND ALLEGATIONS:

James Suess (“Plaintiff”) filed this action on January 29, 2019, seeking damages from the City of Pomona Police Department and its employee Paul Capraro (“Defendants”) for alleged wrongful termination. Plaintiff filed his first amended complaint (“FAC”) on May 7, 2019. Following the Court’s September 30, 2019, ruling sustaining the demurrer to the FAC, with leave to amend, Plaintiff filed the operative second amended complaint (“SAC”) on October 10, 2019.  On July 19, 2022, Defendants filed a motion in limine asking the Court exclude evidence pertaining to 20 alleged acts occurring before July 30, 2017. 

A review of the record reveals that a Motion to Strike the punitive damages claim in the SAC was granted on September 3, 2020. Summary Adjudication was granted as to the SAC’s Invasion of Privacy claims, Negligent Infliction of Emotion Distress claims, and the Intentional Infliction of Emotional Distress (“IIED”) claims against defendants Pat Whitfield and William Knight April 30, 2021. As such the remaining causes of action in the SAC are for violations of Labor Code § 1102.5 and Intentional Infliction of Emotion Distress against the City of Pomona and Paul Capraro.

MOTION IN LIMINE:

ANALYSIS:

I.                LEGAL STANDARD

“In limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial. ‘The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. What in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure.” Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593 (Citations Omitted).

A motion in limine may not be used to effectively seek a summary judgment or summary adjudication of an issue or issues. These motions may only be made in compliance with CCP §437c and LASC Rule 3.57(b).

II.              MERITS

Defendants argue that Plaintiff failed to file a government claim within six months of the cause of action accruing as required by Gov. Code §905. As a result, Defendants state that Plaintiff’s remaining claims are barred. Defendants’ motion in limine appears to request the disposition of Plaintiff’s case. Defendants seek an order dismissing the remaining causes of action as barred by law. In the alternative they request the Court to find the remaining two claims fully barred as a matter of law, which would ultimately have the same effect as dismissal.  The Court believes such a motion in limine is improper.

Defendants cite Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582 to support the dismissal of a cause of action via a motion in limine. While this is true, the court in Amtower expressed an unease about this use of motions in limine as a substitute for motions for summary judgment or adjudication. The Amtower court emphasized the importance of two factors in allowing a motion in limine to dispose of a cause of action: (1) the opportunity afforded to the opposing party to be heard and (2) the ability of opposing party to produce evidence which would change the result of the motion. In Amtower, the court refused to reverse the trial court’s ruling in favor of the motion, even though the party was not afforded a chance to present a comprehensive offer of proof, because it found the party could not have produced evidence which would have prevented dismissal.

Here, it is critical that the parties disagree as to the date of accrual for purposes of determining when the government complaint should have been filed. Defendants contend that the acts which constitute the Labor Code violations and IIED cause of action all occurred outside of the six-month period in which Plaintiff was required to file the government claim.  Defendants further assert that the “continuing violation” doctrine does not apply to the instant situation. The “continuing violation” doctrine is the aggregation of a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations as accruing for all of them upon commission or sufferance of the last of them. (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104.) Defendants argue that as per Willis, the doctrine does not apply here because the acts alleged are not sufficiently frequent or similar so as to justify treating them as an indivisible course of conduct. (Id. at 1124.) Plaintiff argues in opposition that the acts outside of the statutory period are indeed similar enough to constitute a course of conduct, ultimately culminating in Plaintiff’s termination.

The Court finds Defendants’ motion in limine to be a disfavored avenue for relief. As the Courts of Appeal have opined, this road often denies a party of the due process afforded with the traditional ways of relief, e.g., a motion for summary judgment or summary adjudication.  Unlike the circumstances in Amtower, here Plaintiff is afforded fewer protections than on summary judgment and has shown the ability to provide evidence in support of its argument for application of the “continuing violation” doctrine. The Court finds that a motion for summary judgment or adjudication would afford Plaintiff the proper protections and be a more appropriate form in which to resolve the statute of limitations issue. In lieu of that, a bifurcated trial on the issue may be an option pursuant to CCP §597. 

Defendants’ motion in limine is DENIED.

MOTION FOR LEAVE TO AMEND:

BACKGROUND:

Plaintiff filed motion for leave to file his third amended complaint on January 5, 2023. Plaintiff had previously filed this motion on August 15, 2022 but withdrew the motion on December 12, 2022 after Judge Sirna recused himself and the matter was subsequently reassigned to this Court. Defendants filed their opposition on January 5, 2022, and Plaintiff filed his reply the same day.

ANALYSIS:

I.                LEGAL STANDARD

Leave to amend is permitted under CCP §§473(a) and 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . ..” “Although 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 [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . .. [citation].  A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)  

A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration explicitly setting forth what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).) 

PROCEDURAL CONCERNS:

The Court notes that Plaintiff’s motion fails to state the allegations from the previous pleading which are deleted and added, in accordance with CRC 3.1324(a).  Plaintiff has attached a copy of the proposed TAC which proposes to add causes of action for breach of contract and violations of Gov. Code §3304(d)(1). Plaintiff’s proposed amendments allege that the City of Pomona breached the Memorandum of Understanding when it failed to bank Plaintiff’s vacation time and pay it out. (Proposed TAC ¶¶ 40-44.) Plaintiff also now alleges that the City of Pomona violated Gov. Code §3304(d)(1) when it implemented Plaintiff’s termination more than one year after investigation of a complaint against him began. (Id.  ¶¶ 48-52.)

II.              MERITS

a.     Failure under Gov. Code §905

Defendants argue in their opposition that Plaintiff’s proposed claims fail as a matter of law because Plaintiff did not file a claim pursuant to Gov. Code §905 within a six-month period. Defendants argue that Plaintiff’s government claim did not contain allegations of a breach of contract or POBRA violations. Upon review of the case law, the Court finds that no such specificity was required of Plaintiff in making his government claim.  “A plaintiff may allege compliance with the claims requirements by including a general allegation that he or she timely complied with the claims statute.” Gong v. City of Rosemead (2014) 226 Cal.App.4th 363. The cases upon which the Defendants rely present instances where plaintiffs attempted to circumvent the government claims requirement entirely. The Court does not find that to be the case here.

Plaintiff filed his claim against the City of Pomona on or about July 30, 2018. The claim submits that the injury occurred on August 3, 2017.  As discussed in the Court’s ruling on the motion in limine, the parties disagree as to when the statute of limitations tolls with respect to Gov. Code §905.

Plaintiff and Defendants both cite to Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739 in discussing leave to amend. Defendants argue that Atkinson supports a finding against leave to amend in instances where legal claims sought to be added are defective as a matter of law. Atkinson concerned the statute of limitations in an action on products liability. The parties in Atkinson stipulated to the underlying facts of the dispute and defendant indicated that it believed the plaintiff was amending to reintroduce fraud claims after previous claims were summarily adjudicated against him. Regardless, the Atkinson court found that the plaintiff should have been granted leave to amend and let the parties test legal sufficiency in other appropriate proceedings.

Here, unlike Atkinson, there remains a significant dispute as to the underlying facts of the case and the tolling of the statute. Also, unlike Atkinson, summary adjudication has not been granted as to similar causes of action. It may well be that Plaintiff is unable to prove a “continuing violation,” however the Court finds that such determination would be inappropriate upon motion for leave to amend.

b.     Plaintiff’s Added Cause of Action for Breach of Contract 

If a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) To plead a contract’s legal effect plaintiff must allege the substance of its relevant terms. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457.)

Defendants argue that Plaintiff’s claim for breach of contract fails as a matter of law because he was not a party to the Memorandum of Understanding on which this claim is based. In essence Defendants argue that a contract does not exist as between themselves and Plaintiff. Plaintiff claims that a Memorandum of Understanding was in effect at the time he was employed and was updated thereafter. Plaintiff does not attach a copy of the MOU to the proposed complaint and thus, the court presumes he intends to plead its legal effect. Plaintiff alleges that the MOU provides “An employee having a sick leave balance of 480 hours or more on the pay period ending closest to November 1 of each year shall be eligible to convert accrued sick leave to vacation” and that such conversion is subject to conditions. Plaintiff does not allege specifically what these conditions are how he met them and cannot be said to have adequately alleged the substance of the MOU’s relevant terms. As such, the Court finds that the TAC does not adequately plead a cause of action for breach of contract and the motion for leave to amend as such is DENIED.

c.      Plaintiff’s Added Fifth Cause of Action for Violations of Gov. Code §3304(d)(1)

Defendants argue that Plaintiff’s claim for a violation of Gov. Code §3304(d)(1) also fails as a matter of law. Defendants argue that Plaintiff’s failure to assert his POBRA defenses at the time of his termination, either in court or in an administrative appeal, bars him from making the claim now.

As per Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373 when a statutory time limit is an integral part of the claim, the claim must be raised either at an administrative hearing or in a proceeding under §3309.5(c). Here Plaintiff’s proposed claim centers on a violation of the one-year time limit between investigation and punitive action in §3304(d). Plaintiff alleges that more than one year passed from the investigation of the dispute with his neighbors and his eventual firing as a result. However, Plaintiff fails to allege facts suggesting that he ever attempted an administrative appeal on these grounds nor filed an action under §3309.5(c). Plaintiff provides no explanation in his opposition as to why he did not initially make these claims. The Court finds that Plaintiff’s claim of a violation of §3304(d)(1) is barred as he failed to exhaust his administrative remedies with respect to this claim. As such, Plaintiff’s motion for leave to amend is DENIED as to his cause of action for breach of Gov. Code §3304(d)(1).

d.     Inexcusable Delay and Prejudice to Defendants

If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.) Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471.)

Defendants claim that Plaintiff has not provided adequate reasoning as to why this cause of action was delayed, given that the events from which it stemmed occurred five years ago. Defendants argue that Plaintiff either was or should have been aware of these claims at the time of initial filing and that they would be prejudiced if forced to proceed to trial without leave to conduct discovery. Further, Defendants claim that a grant of leave to amend would prejudice them absent a continuance of the trial to permit them to file dispositive motions as to these causes of action.

In reply, Plaintiff asserts that the delay was the result of information discovered in the deposition of Linda Matthews in March of 2022.  Plaintiff does not aver as to what details from the deposition alerted counsel to the merit of its Labor Code § 202 claim. As explanation for the delay in filing for the amendment Plaintiff states that the state of emergency delayed some movement in the case and that counsel was recovering from a cornea transplant from March 2020 to March 2021. However, Plaintiff did not propose these causes of action be added when proposing his previously withdrawn motion in August 2022.

As the Court denies Plaintiff’s motion the points of inexcusable delay and prejudice are moot.  Regardless, the Court will rule on them should the Plaintiff propose further amendment adequately pleading his breach of contract claim in the future. The Court finds that a delay without adequate explanation did occur here. Plaintiff offers insufficient explanation as to the time between discovery of these claims in March 2022 and the filing of this motion asserting them in January 2023. However, the Court finds that Defendants have not evidenced any prejudice. Defendants argue they would be prejudiced in the event that they were not granted a continuation of trial to allow time to file dispositive motions. The Court sees no reason such a continuance would not be granted in the event of an amendment so close to trial.

III.            CONCLUSION

The Court denies Defendant’s motion in limine No. 12 as requesting inappropriate dismissal of Plaintiff’s remaining causes of action. The Court denies Plaintiff’s motion for leave to file a third amended complaint.

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff James Suess’s Motion for Leave to File Third Amended Complaint came on regularly for hearing on March 10, 2023 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE COURT DENIES DEFENDANTS’ MOTION IN LIMINE NO. 12.

THE COURT DENIES PLAINTIFF’S MOTION FOR LEAVE TO FILE A TAC.

DEFENDANT TO GIVE NOTICE UNLESS ALL PARTIES WAIVED NOTICE

DATE: March 10, 2023                              

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles