Judge Lynne M. Hobbs, Case Number: 21STCV06691, Date: 2024-06-10 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV06691, Date: 2024-06-10 Tentative Ruling

Case Number: 21STCV06691 Hearing Date: June 10, 2024 Dept: 61

SYLVIA SANTIAGO vs KAISER FOUNDATION HOSPITALS, A CALIFORNIA CORPORATION, et al.

TENTATIVE

Plaintiff Sylvia Santiago’s Motion for Leave to File a First Amended Complaint is DENIED.

Defendant to provide notice.

DISCUSSION

Code Civ. Proc. section 473 subd. (a)(1) states that:

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.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.)

“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 ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Pursuant to California Rule of Court Rule 3.1324, “[a] motion to amend a pleading before trial must: (1)Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3)State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

Such a motion must include a supporting declaration 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 reasons why the request for amendment was not made earlier.” (CRC Rule 3.1324, subd. (b).)

Plaintiff Sylvia Santiago (Plaintiff) seeks leave to add allegations in a proposed First Amended Complaint (FAC) related to a disparate impact theory of discrimination, as well as various other amendments to clarify individual allegations related thereto. (Motion at pp. 5–6.) Plaintiff contends that these amendments were made necessary by this court’s order of January 25, 2024, in which Plaintiff’s motion to compel further responses to special interrogatories was denied in part, as this court determined that Plaintiff had alleged only individual theories of disparate treatment, which were insufficient basis for Plaintiff to seek contact information and discharge circumstances for every RN at Defendant Kaiser Foundation Hospitals’ (Defendant) Baldwin Park facility. (Mohrsaz Decl. ¶ 14; see 1/25/2024 Ruling.) Plaintiff now seeks to include allegations specifically stating that Defendant’s “policy of refusing to allow employees under Corrective Action Plans to be transferred, even if a transfer is requested in the context of a reasonable disability-related accommodations or in connection with harassment, renders Kaiser’s entire Corrective Action Policy discriminatory and in violation of the FEHA insofar as it tends to have a disparate impact upon disable employees and/or employees subject to harassment.” (Mohrsaz Decl. Exh. 2, ¶ 41.)

No leave to amend is properly granted here, because as Defendant argues in opposition, Plaintiff’s disparate impact claim is time-barred, and therefore leave to amend would be futile. “[L]eave to amend should not be granted where ... amendment would be futile.” (Sandler v. Sanchez (2012) 206 Cal.App.4th 1431, 1437, italics in original.) “[T]he failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend.” (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280, disapproved on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)

Although case law states that it is “preferable . . . 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), there are two good reasons here to rule upon the sufficiency of the amendment in the present motion. First, Plaintiff’s proposed disparate impact theory has already provoked a substantial discovery dispute, and if granted would likely occasion expansive discovery demands and related motion practice, even as a dispositive motion was pending. A ruling here would thus spare the parties much trouble and expense. Second, and more important, Plaintiff’s proposed amendment is barred by squarely applicable case law.

In Foroudi v. Aerospace Corporation (2020) 57 Cal.App.5th 992, 1005 the court held that a discrimination plaintiff’s newly added charges of disparate impact did not relate back to the filing of their original charge. The court reasoned that “[t]here is a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact.” (Id. at p. 1004, internal quotation marks omitted.)

In a disparate treatment claim, the employer simply treats the employee less favorably because of a protected trait, and liability depends on whether the protected trait actually motivated the employer's actions. By contrast, disparate-impact claims involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.

(Ibid., internal quotation marks omitted.) The court assessed whether the plaintiff’s original administrative charge could bear the “weight” of the new disparate impact theory, sufficient to allow the otherwise time-barred theory to relate back to the original filing (Id. at p. 1004), and concluded that it could not:

The factual allegations in Foroudi's original and first amended DFEH complaints could not support a disparate impact theory of recovery. Foroudi's original DFEH complaint failed to include any specific factual allegations, let alone allegations to even suggest Aerospace had a neutral policy that fell more harshly on older employees. While the first amended DFEH complaint added factual allegations, its gravamen was that Foroudi's managers engaged in disparate treatment discrimination by specifically targeting him for the RIF. It alleged, for example, that the managers “began telling [Foroudi] that [he] was not following directives, denied [him] the ability to choose certain hotels when traveling and gave [him] low ranking grade which resulted in [him] being laid off. [The RIF] was pretext and discriminatory and due to [his age].” Like the original complaint, the first amended DFEH complaint did not allege or even suggest any facially neutral policy that fell more harshly on older employees. As such, neither complaint could support a disparate impact theory of recovery.

(Ibid.)

The situation here is materially identical. Plaintiff’s DFEH charge contains no reference to facially neutral policies or disparate impact theories, let alone any factual allegations that could form the basis therefore. Plaintiff’s DFEH stated:

Complainant has been employed by Respondent(s) and DOES 1 through 10 ("Employers") since July 10, 1989. During the course of employment, Complainant was subject to harassment by a co-worker, which caused her severe emotional distress, and prompted Complainant to require accommodations in the form of light duty and/or finite leave. Upon informing Respondent(s) of the ongoing harassment and requesting accommodations with respect thereto, Complainant was discriminated against on the basis of her age and medical condition, denied reasonable accommodations, interactive process, was retaliated against, and was denied transfer to another department.

(Al-Chalati-Moeller Decl. Exh. A.) Plaintiff’s reference here to her “denied transfer” provided no more notice of a policy-based disparate impact theory than the Foroudi charge’s reference to a “reduction in force (RIF)” which was later claimed to have disparate discriminatory impacts. (Faroudi, supra, 57 Cal.App.5th at p. 996.)

Plaintiff’s last day of work was April 2020. (Mohrsaz Decl. Exh. 2, ¶ 38.) The time to bring a FEHA charge is three years from the date of the unlawful practice alleged. (Gov. Code § 12960, subd. (e)(5).) Plaintiff’s proposed amendment is time-barred, and under Foroudi, does not relate back to the original charge.

The motion is therefore DENIED.