Judge: Michael Small, Case: 19STCV45102, Date: 2023-05-18 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 19STCV45102     Hearing Date: May 18, 2023    Dept: 57

Pending before the Court is Plaintiff's motion for leave to file a Second Amended Complaint ("SAC") to add several causes of action based on allegations of gender and disability discrimination.  In his current operative pleading, the First Amended Complaint ("FAC"), the Plaintiff  asserts only one cause of action, which is for whistleblower retaliation.  Defendant opposes Plaintiff's motion.   The Court is granting it.

As a threshold matter, the Court notes that Plaintiff cited Code of Civil Procedure Section 464(a) in his Notice of Motion.  Section 464(a) governs "supplemental pleadings."  Plaintiff does not, however, propose to file a supplemental pleading within the meaning of Section 464(a).  Plaintiff seeks to file an amended pleading, which is different.  Motions for leave to file an amended pleading are governed by Sections 473(a)(1) and 576.  In the Memorandum in support of his motion, Plaintiff makes clear that he is relying on Sections 473(a)(1) and 576, not Section 464(a).  Accordingly, the Court has analyzed the motion under Sections 473(a)(1) and 576.  Defendant does not argue that this is improper due to Plaintiff’s invocation of Section 464(a) in the Notice of Motion.

Section 473(a)(1) authorizes courts, “in furtherance of justice, and on any terms as may be proper, [to] allow a party to amend any pleading . . . .” In a similar vein, Section 576 authorizes courts, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, [to] allow the amendment of any pleading.”  These provisions manifest a strong public policy of “great liberality” in allowing parties leave to amend their pleadings at any stage of a case.  (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163, citation omitted.)  Indeed, denial of a request for leave to amend is rarely justified.  Absent prejudice to the adverse party, leave to amend generally should be granted.  (Ibid.)

In its opposition to Plaintiff's motion, Defendant asserts that it will be prejudiced by the amendment of Plaintiff’s complaint.  Defendant's claim of prejudice is based primarily on (1) Plaintiff's delay in seeking leave to file his SAC, which comes nearly 3.5 years after the action was brought and more than the three years after the filing of the FAC; (2) the proximity to the June 22, 2023 hearing date on Defendant's motion for summary judgment directed at the FAC; and (3) the proximity to the July 10, 2023 trial date.   Having considered these points, the Court does not discern prejudice to the Defendant that would warrant denial of Plaintiff's motion.

First, delay by one side in seeking leave to amend a pleading does not, in and of itself, create prejudice to the other side.  (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1068.)  In any event, on the record before the Court, it is not clear that there actually was unreasonable delay here.   Rather, Plaintiff sought leave to amend promptly after eliciting information in recently concluded depositions of Defendant's representatives that would support the addition of gender and disability discrimination claims.  Yes, it took a while for the depositions to be conducted.  But it is not evident that Plaintiff bears the sole blame for that delay.   Second, the general rule in favor of the liberal granting of leave to amend governs "even when a summary judgment motion is pending."   (Williemsen v. Mitrosilis (2014) 230 Cal.App.4th 622, 633;  see also Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663–1664.).   Third, the general rule also governs even when the amendment comes relatively close to the scheduled start of the trial.  (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)  Here, the trial is set to commence just short of two months from now.  That is fairly soon, of course.  On the record before the Court, however, the Court has determined that, on balance, the possible rescheduling of the start of the trial resulting from the filing of the SAC would not prejudice Defendant to such an extent that the rule in favor of the liberal granting of leave to amend should give way here.

In addition to the claim of prejudice, Defendant argues that the new claims that Plaintiff seeks to add by way of the proposed SAC are barred by the applicable statutes of limitations.  Not so.  In the Court's view, the new claims "relate back" to the filing of the initial complaint.  (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409; Barrington v. A.H.Robins Co. (1985) 39 Cal.3d 146, 150.)  Accordingly, they are not time-barred.

Finally, Defendant argues that Plaintiff’s new claims fail as a matter of law. Therefore, Defendant says, leave to amend would be fruitless and should be denied.  True, trial courts have discretion to deny motions for leave to amend if proposed new claims fail to state a cause of action.  But trial courts also have discretion to decline to deny the motion for leave to amend on that basis.   In the Court’s view, whether the Plaintiff’s proposed new claims fail as a matter of law should be tested in this case by way of a demurrer or motion for summary judgment, not by way of an opposition for leave to amend. 

Plaintiff is directed to file and serve its proposed SAC within 7 days of the hearing date on his motion for leave to amend.