Judge Kerry Bensinger, Case Number: 24STCV07056, Date: 2025-03-03 Tentative Ruling

RESPONDING PARTY: Defendant Jesus Martin Barajas Avita dba Cleaning Services

On March 20, 2024, Plaintiff, Norma Guerra, filed a Complaint against Defendants, Environmental Service Concepts, LLC, and Jesus Martin Barajas Avita dba Cleaning Services (“Avita”) alleging causes of action for (1) unpaid wages and overtime, (2) failure to provide meal period, (3) failure to provide rest periods, (4) failure to provide accurate wage statements, (5) waiting time penalty for nonpayment of wages, and (6) violation of Business and Professions Code section 17200.

On November 26, 2024, Plaintiff filed this motion for leave to file the proposed First Amended Complaint (FAC).

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 3.1324(b).)¿

In ruling on a motion for leave to amend a pleading, 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.)¿

Plaintiff seeks leave to file the proposed FAC. The proposed pleading adds a seventh cause of action for violation of Labor Code Private Attorneys General Act (“PAGA”). Plaintiff explains that the proposed PAGA claim was not included in the original complaint because Plaintiff had not yet exhausted her administrative remedies. Specifically, 65 days had not elapsed from the date of PAGA notice. (See Haulk Decl., ¶ 7; Lab. Code § 2699.3(a).) The statutory mandated time has now elapsed. Neither the LDWA or Plaintiff’s previous employers (Defendants) have indicated they will investigate or remedy the claims. As such, Plaintiff now seeks leave to file the proposed FAC.

Avita argues the motion should be denied because (1) Plaintiff waited nearly 6 months after becoming eligible to seek leave of court to amend her complaint to include her PAGA claim, (2) Plaintiff made no mention of any intent to seek leave of court in her July 5, 2024, case management statement, (3) Avita would be prejudiced by the amendment because it exposes him to civil penalties for the PAGA claims despite Plaintiff’s failure to exhaust her administrative remedies before filing this case.[1]

Avita’s arguments lack merit. None of the grounds identified warrant denial of a request for leave to amend the complaint. This point is underscored by the relative nascency of this litigation, that none of the proceedings in this case will be delayed, discovery is ongoing, and the law favors disposition of cases on the merits.

Based on the foregoing, the court finds that Plaintiff is entitled to an order granting leave to file the proposed pleading. The court finds no prejudice will result if leave is granted to file the proposed FAC.

The motion is GRANTED. Plaintiff’s First Amended Complaint is deemed filed on this date, March 4, 2025. Plaintiff is directed to serve and file the FAC.

Avita is ordered to file and serve his responsive pleading within 30 days of the date of this order.

Kerry Bensinger

Judge of the Superior Court

[1] Avita requests that the court exclude civil penalties from Plaintiff’s PAGA claim because she failed to exhaust her administrative remedies before filing this case. However, the request is not in proper form. Avita must bring a demurrer or some other dispositive motion to obtain the relief he seeks. The request is denied.