Judge Kerry Bensinger, Case Number: 23STCV19719, Date: 2024-11-19 Tentative Ruling

On August 17, 2023, plaintiff Tori Chen (Chen) initiated this FEHA action against her employer, defendant Los Angeles Department of Water and Power (LADWP), for (1) Gender Discrimination in Violation of FEHA, (2) Race Discrimination in Violation of FEHA, (3) Harassment on the Basis of Race and Gender in Violation of FEHA, (4) Retaliation in Violation of FEHA, and (5) Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA.

The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect.¿ (Code Civ. Proc., § 473, subd. (a)(1).)¿ “Public policy dictates that leave to amend be liberally granted.”¿ (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.)¿ “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 . . . 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, Inc. (1996) 48 Cal.App.4th 471, 487.)¿

A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (Cal. Rules of Court, Rule 3.1324(a).)¿ The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier.¿ (Cal. Rules of Court, Rule 1.324(b).)¿

In ruling on a motion for leave to amend the complaint, the court does not consider the merits of the proposed amendment, because “the preferable practice would be 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.”¿ (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)¿ While the court may deny leave to amend where the proposed amendment is insufficient to state a valid cause of action or defense, such denial is most appropriate where the insufficiency cannot be cured by further amendment—i.e., where the statute of limitations has expired or the insufficiency is established by controlling caselaw. (California casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281, disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)¿

Chen seeks leave to file the proposed first amended complaint to add one cause of action for wrongful termination. Chen explains the amendment is made at this time because her termination from employment with LADWP on November 27, 2023, occurred after the filing of the Complaint and LADWP’s Answer.

The motion complies with the requirements of California Rules of Court, rule 3.1342(a). Further, as the motion is unopposed, the court finds no prejudice will result if leave is granted to file the amended complaint.

The unopposed motion for leave to file the First Amended Complaint is GRANTED. The First Amended Complaint is deemed filed and served on this date. Plaintiff is directed to separately file the First Amended Complaint within five court days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)