Judge: Malcolm Mackey, Case: 21STCV24921, Date: 2022-10-18 Tentative Ruling

Case Number: 21STCV24921    Hearing Date: October 18, 2022    Dept: 55

EUPERIO v. PACIFIC EXPLORER MONTESSORI LLC       21STCV24921

Hearing Date:  10/18/22,  Dept. 55

#10:   MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT.

Notice:  Okay

Opposition

MP:  Plaintiff

RP:  Defendants

Summary

On 7/7/21, Plaintiff GINA EUPERIO filed a Complaint.

On 8/30/22,  Plaintiff filed a motion for leave to file a First Amended Complaint, alleging that defendants employed Plaintiff as a teacher, and wrongfully terminated her employment when she intended to disclose Pacific’s COVID-19-related conduct to the California Labor Board.

The causes of action are:

1) WHISTLEBLOWER RETALIATION IN VIOLATION OF LABOR CODE 1102.5

2) RETALIATION IN VIOLATION OF LABOR CODE 98.6

3) WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY-TAMENY CLAIM

4) FAILURE TO PROVIDE REST BREAKS

5) FAILURE TO PAY OVERTIME

6) FAILURE TO PROVIDE ACCURATE WAGE STATEMENT

7) VIOLATION OF UNFAIR COMPETITION LAW.

MP Positions

Moving party requests an order granting leave to file a First Amended Complaint, on grounds including the following:

·         Plaintiff seeks leave to amend to include claims of failure to pay overtime, failure provide an itemized wage statement, and violation of California’s Unfair Competition Law.

·         Deposing Defendant Duminda Wijayaratna revealed that Pacific never paid its employees overtime, due to an erroneous belief that overtime only applied when an employee worked more than eighty hours in pay period, rather than when an employee worked more than eight hours in a day.

·         Plaintiff’s time cards produced in discovery, show that she frequently worked more than eight hours a day. But defendants never paid Plaintiff for any of this overtime.

RP Positions

Opposing parties advocate denying, for reasons including the following:

·         Defendants would be prejudiced.  The trial date is set.  Defense counsel has not focused on overtime, wage statements, or unfair business practices, because they were not allegations made in the operative complaint.

·         Plaintiff’s attorney waited until April 30, 2022, to file the instant motion, knowing that overtime was an issue even before filing the Complaint.

·         Plaintiff failed to make factual showings to support the proposed Causes of Action. Plaintiff’s counsel claims he has documents which show Plaintiff worked more than 8 hours a day. What are those documents?

·         Plaintiff’s counsel did not meet and confer in good faith before filing this motion, as analogously is required in discovery.

Tentative Ruling

The motion is granted.

The proposed First Amended Complaint may be served and filed, as a separate document, within 10 days.

Obtaining discovery after knowledge of claims is legitimate. “If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.”  Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596 (if claims were pled before obtaining justifying support, via investigating and discovery, complainants could be exposed to liability for malicious prosecution).

Evidentiary support of a pleading is not required to amend.  Courts generally do not consider the validity of proposed amendments to a pleading.  Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047;  Atkinson v. Elk Corp. (2006) 109 Cal. App. 4th 739, 760 (“the better course of action would have been to allow … [plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.”). 

Prejudice alone is not a reason to deny, but must be accompanied by unjustified delay.  A court can deny leave to amend if there was long, inexcusable delay, and there is cognizable prejudice, such as discovery needed, trial delay, critical evidence lost, or added preparation expense.  Solit v. Tokai Bank (1999) 68 Cal. App. 4th 1435, 1448;  Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761;  Green v.  Rancho Santa Margarita Mortgage Co.  (1994) 28 Cal.App.4th 686, 692;  Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487. 

“[D]iscretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”  Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047.

Meeting and conferring distinguishably relates to discovery motions.

*IF BOTH PARTIES WANT TO SUBMIT ON THE TENTATIVE, PLEASE CALL THE COURTROOM AT 8:30 A.M. *