Judge: Michael E. Whitaker, Case: 22SMCV00023, Date: 2023-09-29 Tentative Ruling

Case Number: 22SMCV00023    Hearing Date: September 29, 2023    Dept: 207

TENTATIVE RULING

MOTION

            Defendant and Cross-Complainant Linda Baggett (“Cross-Complainant”) moves for leave to file an amended cross complaint to add references to sections of the Labor Code in the caption under the First Cause of Action for “Failure to Pay Lawful Wages, Including Overtime” and in the request for damages under the first cause of action.  The motion is unopposed.  Trial in this matter is currently set for October 16, 2023.

LEGAL STANDARD

Amendments to Pleadings: General Provisions

            Under Code of Civil Procedure section 473, subdivision (a)(1), “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.”

            To wit, without notice to the other party the Court has wide discretion to allow either party (i) to add or strike the name of a party or (ii) to correct a mistake in the name of a party or a mistake in any other respect “in furtherance of justice” and “on any terms as may be proper.” (See Code Civ. Proc., § 473, subd. (a)(1); see also Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.) Alternatively, after notice to the other party, the Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., § 473, subd. (a)(1). Similarly, Code of Civil Procedure section 576 states “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

            Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted. (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 [this has been an established policy in California since 1901] (citing Frost v. Whitter (1901) 132 Cal. 421, 424; Thomas v. Bruza (1957) 151 Cal.App.2d 150, 155).) The Court of Appeal in Morgan v. Superior Court held “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.) Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

            “The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 6:636 (hereafter Weil & Brown).) Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.) However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the 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. (Id. at ¶ 6:653 (citing 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. . . . But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

            “Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.) For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

California Rules of Court, rule 3.1324: Procedural Requirements

            Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, 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.”

            In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

“(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.”

DISCUSSION

            The first cause of action in the original cross-complaint listed Labor Code sections 510 (overtime pay); 1194 (minimum wage and minimum overtime wage); and 558.1 (liability of owners, directors, officers, and managing agents for violations of wage and hour laws). 

            Cross-Complainant now seeks to add under the caption for the first cause of action, references to Labor Code sections 201 (unpaid wages due upon termination); 202 (final paycheck due immediately upon termination); 218 (private right of action for wage penalties under the labor code); 218.5 (entitlement to attorneys’ fees for nonpayment of wages); and 1194.2 (liquidated damages).  Cross-Complainant also seeks to add references to Labor Code sections 218, 218.5, and 1194.2 in her request for damages under the first cause of action, and reference to “liquidated damages pursuant to Labor Code § 1194.2” in the Prayer for Relief for the first cause of action.  The factual allegations and causes of action otherwise remain unchanged from the original cross-complaint.  Cross-Complainant has also provided a redlined and a clean copy of the proposed amended cross-complaint.  (See Ex. A to Cooper Decl.)

Counsel for Cross-Complainant, Stacey M. Cooper, has provided a declaration indicating that the effect of the amendment will “not remove or add any new or different factual allegations, legal theories, or claims for relief” and “are being made solely to conform the Cross-Complaint to the corresponding jury instructions (CACI No. 2700)” for the first cause of action.  (Cooper Decl. ¶ 7.)  Counsel further indicates the proposed amendments are necessary and proper “because they will have the effect of clarifying for trial the relief sought by Dr. Baggett and the corresponding statutory grounds.”  (Id. at ¶ 8.)  Counsel further indicates that the request to amend “was not made earlier because I became aware of the need to amend the Cross-Complaint on this basis during preparation and review of proposed jury instructions in preparation for trial on or about August 31, 2023.”  (Ibid.) 

However, Cross-Complainant’s fifth cause of action for wrongful termination and sixth cause of action for retaliation were already dismissed on cross-defendant Thrive’s motion for summary adjudication.  (See May 4, 2023 Minute Order.)  Because the only proposed changes from the original cross-complaint are to add references to various sections of the Labor Code in conjunction with the first cause of action, the effect of the proposed amended cross-complaint would be to improperly reassert and reallege the fifth and sixth causes of action, which have already been resolved on the merits in Thrive’s favor and dismissed.

CONCLUSION AND ORDER

            The Court denies Cross-Complainant’s Motion for Leave to Amend the Cross-Complaint.

            Cross-Complainant shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  September 29, 2023                                               ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court