Judge: Michael Shultz, Case: 20STCV23430, Date: 2025-04-04 Tentative Ruling

DEPARTMENT 40 - MICHAEL J. SHULTZ  - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 



Case Number: 20STCV23430    Hearing Date: April 4, 2025    Dept: 40

20STCV23430 Grace Fizmurice, et al v. Montebello Unified School District

Friday, April 4, 2025

 

[TENTATIVE] ORDER DENYING MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT

 

                                                                                              I.         BACKGROUND

      The first amended complaint (FAC) filed January 22, 2021, alleges that Defendant employed Plaintiff, Grace Fizmurice (Fizmurice), as a counselor at Vail High School. The principal of the school allegedly made the conditions of employment so intolerable that Plaintiff was forced to resign in June 2018.

      The operative pleading also alleges that Defendant employed Plaintiff, Luz Hernandez (Hernandez), as an acting principal for Schurr Adult School. Hernandez suffered work-related injuries that Defendant failed to accommodate. Plaintiffs allege claims for breach of contract, and violations of the Fair Employment and Housing Act.  

                                                                                               II.        ARGUMENTS

      Plaintiff filed this motion on March 11, 2025, and requests leave to file a third amended complaint. Present counsel, Gary Carlin, substituted in on March 18, 2022, and was not involved in drafting the original or first amended complaint. During a mediation held on June 6, 2024, Mr. Carlin determined that additional claims should be added for whistleblower retaliation, hostile work environment, and fraud. Plaintiff argues that trial is set for April 23, 2025, however the parties understood at the last mediation that Plaintiff would amend her complaint.

      On March 13, 2025, Plaintiff filed an amended notice of motion to add a disclaimer that the motion is filed pursuant to a meeting between counsel and the court in lieu of an ex parte  application, as instructed by the court on March 3, 2025.

      Defendant opposes the motion and requests imposition of sanctions for Plaintiff’s abuse of the litigation process. This is the third time Plaintiff filed this motion. Plaintiff withdrew the first motion, and the court vacated Plaintiff’s second attempt to seek leave to amend based on counsel’s representation that Plaintiff would be ready for trial on April 23, 2025.

      Defendant argues that Plaintiff is reviving stale claims that have been adjudicated and dismissed and is attempting to bring Fitzmurice back into this action, although she was improperly joined and subsequently dismissed from the action. The claims are subject to demurrer. Adding six new causes of action will result in prejudice to Defendant given that trial is on April 23, 2025.

      Plaintiff did not file a reply brief.  

                                                                                       III.       LEGAL STANDARDS

      Leave to amend is permitted at the court’s discretion upon any terms that may be just. (Code Civ. Proc., § 473 subd. (a)(1).) The statute is liberally construed to permit amendment of the pleadings “unless an attempt is made to present an entirely different set of facts by way of the amendment.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760.) The amendments here relate to a different set of facts.

      If the motion is timely made, and the granting of the motion will not result in prejudice to the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530.) Where denial of the motion will result in a party being deprived of the right to assert a meritorious cause of action, “it is not only error but an abuse of discretion”. (Id.) The liberal policy permitting amendment at any stage of the proceedings, up to and including trial, "should be applied only ‘[w]here no prejudice is shown to the adverse party”. (Atkinson at 761.)

                                                                                                IV.       DISCUSSION

      On March 3, 2025, the court denied Plaintiff’s ex parte application to continue trial as moot given the parties’ stipulation to continue the trial date to April 23, 2025. The court advanced and vacated Plaintiff’s motion for leave to file a third amended complaint scheduled for April 29, 2025, as Plaintiff’s counsel could not articulate a reason for leaving it on calendar. (M.O. 3/3/25.) Plaintiff then filed this motion on March 11, 2025.

      The March 3rd minute order does not reflect a court order instructing Plaintiff to file this motion in the interim. Instead, the court noted that Plaintiff’s counsel represented that Plaintiff would be ready for trial on April 23, 2025. (M.O. 3/3/25.)

      The motion does not meet the requirements of the California Rules of Court.  While Plaintiff includes a copy of the amended pleading, it is not serially numbered. (Cal Rules of Court, Rule 3.1324 subd. (a).) The operative pleading is the first amended complaint; a second amended complaint has not been filed.

       Plaintiff does not state what allegations are proposed to be added and/or deleted and where, by page, paragraph, and line number. (Id.) The declaration in support of the motion does not specify the effect of the amendment, when the facts were discovered, and the reasons why the request for amendment was not made earlier. (Id.; See Decl of Gary Carlin.)

      Mr. Carlin states he substituted into this case on March 18, 2022, at which time he conducted a “comprehensive review,” which revealed critical omissions of fact to support claims for whistleblower retaliation, hostile work environment, fraud/deceit, and intentional misrepresentation. (Decl. of Gary Carlin, ¶ 3.) Mr. Carlin does not explain why he waited three years to seek to amend the complaint.

      Given the April 23, 2025, trial date, there is insufficient time for Defendant to discover the facts relevant to the new claims in time to prepare a defense.

      Defendant’s request for imposition of sanctions pursuant to Code Civ. Proc., § 128.7 is DENIED. The motion must be separately made and cannot be filed until 21 days after it is served on the offending party to give that party time to withdraw the challenged paper. (Code Civ. Proc., § 128.7 subd. (c)(1).)

                                                                                               V.        CONCLUSION

      Plaintiff’s failure to comply with the Rules of Court requiring specific information to be provided leaves the court without any pertinent facts on which to exercise its liberal discretion. Defendant has shown that it will suffer prejudice if new claims are added at this stage of the litigation. Accordingly, the motion is DENIED.