I. Background  

On September 12, 2022, plaintiff Felix Interiano (“Plaintiff”) filed this action against defendants G.T.O. Auto Glass Corporation, Francisco Almanza, Emilio Almanza for damages arising from an alleged dangerous condition on defendants’ property.   

On November 30, 2022, Plaintiff filed his First Amended Complaint against the same defendants. Plaintiff subsequently filed an amendment to complaint correcting the name Emilio Almanza to Emilio Rojas Almanza, in addition to naming him as Doe 1.  

At this time, Plaintiff seeks leave to file a Second Amended Complaint (“SAC”) to allege that Plaintiff was hired as an employee by defendants to perform demolition work on their property.  

Defendants G.T.O. Auto Glass Corporation (“G.T.O.”), Francisco Almanza (“Francisco”), and Emilio Rojas Almanza (collectively, “Defendants”) oppose the motion, and Plaintiff filed a reply.   

Plaintiff asserts that he was hired by Defendants to perform demolition work as an employee, and that this has been known throughout litigation. Plaintiff seeks to amend the complaint to allege that he was Defendants’ employee, and asserts that his status was confirmed by Defendants’ discovery responses on November 27, 2023, and through depositions on November 29 and November 30, 2023. Plaintiff contends no additional discovery will be required by this amendment.  

Defendants contest they ever claimed Plaintiff was an employee. Defendants refer to verified discovery responses, in which Plaintiff stated he was an independent contractor who performed occasional jobs when called. Further, Defendants’ own discovery responses maintain that Plaintiff was an independent contractor. Defendants contend that allowing Plaintiff to plead that he was an employee is a material change contrary to prior discovery. 

Plaintiff reiterates that he was an employee and concludes there will be no prejudice. 

II. Motion for Leave to File Amended Complaint  

CCP § 473(a)(1) provides, in relevant part:  “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.”  

“This discretion 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. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)   

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (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.  

Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (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.  

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial.  In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party.  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.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)  Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) 

Here, the deposition snippet of Francisco provided in Plaintiff’s moving papers to purportedly showcase that Plaintiff was an employee does not, in fact, demonstrate that Francisco had testified Plaintiff was an employee. The excerpt asks whether Francisco’s brother had ever been an employee at G.T.O., to which Francisco responds, “we hired him as an employee, he’s been an employee on the record, yes.” The “him” appears to refer to Francisco’s brother, not to Plaintiff. The question then pivots to what kind of business G.T.O. is, in which Francisco responds that G.T.O. is an auto glass store and that “he”, which appears to refer to Francisco’s brother, “hired Mr. Felix.” The snippet provided by Plaintiff does not state in what capacity Francisco’s brother hired Plaintiff.  

Furthermore, Plaintiff’s reply does not respond at all to Defendants’ contention that Plaintiff has previously provided that he was an independent contractor and not an employee, as evidenced by the verified written discovery responses. The Court has reviewed Plaintiff’s written discovery responses provided in Defendants’ opposition. Plaintiff responded to form interrogatory 2.6, which requests him to state his present employer and employer for the past five years, as follows: “None. Retired in 2014.” (Opp. Exh. A.) Plaintiff also responded to form interrogatory 2.11, which asks whether Plaintiff was acting as an agent or employee at the time of the incident, as follows: “No, only performed occasional jobs as an independent contractor on spare time for Defendants when they called.” (Ibid.) Lastly, in response to form interrogatory 11.1 requesting Plaintiff state whether he had made a written claim or demand for worker’s compensation benefit in the last ten years, Plaintiff identifies only employer Map Foods Inc. in April 2013. (Ibid.). Further, Plaintiff propounded request for admissions, set one, on Defendant G.T.O., in which G.T.O. provided unconditional admissions to the following requests: “Admit that PLAINTIFF was not an employee of YOURS,” “Admit that PLAINTIFF was an independent contractor” and “Admit that YOU had no control over PLAINTIFF and how he performed the task(s) requested of him on the date of the INCIDENT.” (Exhibit C; Nos. 11-13.). 

Lastly, Plaintiff filed this motion on February 2, 2024 to amend the pleading, when trial is set for March 11, 2024. Whether Plaintiff was an employee or independent contractor is a factual status that should be known to Plaintiff, and the evidence demonstrates that Plaintiff has taken the position that he is an independent contractor. Plaintiff provides no explanation as to the sudden material shift, which is against the weight of his prior discovery responses. The Court gives “great weight” to admissions made in discovery, as they “‘have a very high credibility value,’ particularly when they are ‘obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts.”  (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 2010.) Plaintiff therefore has not demonstrated that the proposed amendment to add the allegation that Plaintiff was Defendants’ employee is necessary and proper. Additionally, the Court agrees with Defendants that they would be prejudiced by this material change to Plaintiff’s theory of liability against Defendants on the eve of trial, because the amendment will affect Plaintiff’s remedies against Defendants and necessitate a delay in trial for further discovery due to the impending trial date.   

Accordingly, Plaintiff’s motion for leave to file a SAC is DENIED.  

III. Motion to Continue Trial 

Defendants bring a related motion to continue trial on the grounds that it is necessary if Plaintiff amends his complaint to allege last minute that he was an employee and to allege he suffered a pelvic fracture because of the incident. Because the Court denied Plaintiff’s motion to amend his complaint, the basis for Defendants’ motion to continue trial is no longer at issue. Therefore, Defendants’ motion to continue trial is DENIED.  

Moving parties are ordered to give notice.  

PLEASE TAKE NOTICE: