Kurt Oliver v. International Union of Operating Engineers Local 12; and does 1-25, inclusive

PLAINTIFF KURT OLIVER’S UNOPPOSED MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

 

MOVING PARTY: Plaintiff Kurt Oliver

RESPONDING PARTY(S): None

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment dispute. Plaintiff Kurt Oliver worked for Defendant International Union of Operating Engineers Local 12 as a Business agent and later as a District Representative. Plaintiff alleges Defendants terminated his employment immediately after returning from medical leave. Plaintiff brings causes of action for (1) Disability Discrimination (Cal. Gov’t Code § 12940(a)) and (b), (2) Failure to Accommodate (Cal. Gov’t Code § 12940(m)), (3) Retaliation/Discrimination for Requesting Accommodation (Cal. Gov’t Code § 12940(m)(2), (4) Failure to Engage in an Interactive Process (Cal. Gov’t Code § 12940(n)), (5) Retaliation under FEHA (Cal. Gov’t Code § 12940(h)), (6) Failure to Prevent (Cal. Gov’t Code § 12940(k)), (7) Interference under CFRA (Cal. Gov’t Code § 12945.2(q)); (8) Retaliation under CFRA (Cal. Gov’t Code § 12945.2(k)(1)), (9) Wrongful Termination in Violation of Public Policy, and (10) Declaratory Relief.

Plaintiff now moves for leave to file a First Amended Complaint. No opposition was filed. 

TENTATIVE RULING:

Plaintiff’s Motion for Leave to File a First Amended Complaint is GRANTED.

A stand-alone FAC must be filed and served to all current parties within 10 days.  Any new parties must be served in a timely manner as provided by law.

Moving party to give notice, unless waived.

DISCUSSION:

Motion for Leave to File First Amended Complaint

I. Legal Standard

If a plaintiff wishes to amend a complaint after the answer has been filed or after the demurrer has been filed and after the hearing on the demurrer, or if he or she has already amended the complaint “of course,” permission of the court must be obtained before the amendment will be allowed. (CCP §§ 473(a)(1), 576.)  

 

Motions for leave to amend the pleadings are directed to the sound discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . . .” (CCP § 473(a)(1); see CCP § 576.) Policy favors liberally granting leave to amend so that all disputed matters between the parties may be resolved. (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Absent prejudice to the adverse party, the court may permit amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [internal quotes omitted].) 

 

Although denial is rarely justified, a judge has discretion to deny leave to amend if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party. (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530; see also Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490). An opposing party is prejudiced where the amendment would necessitate a trial delay along with a loss of critical evidence, added preparation expense, increased burden of discovery, etc. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.  

Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.  The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.  (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390).) 

II. Analysis

Plaintiff moves for leave to amend to file a First Amended Complaint. By the proposed amendment, Plaintiff will add a cause of action for negligent hiring, supervision, and retention. Plaintiff’s counsel, Christina Humphrey, attests to have learned during discovery that there have been multiple complaints of retaliation and discrimination by Defendant’s employees. (Humphrey Decl. ¶ 5.) Based on these repeat occurences, Plaintiff alleges that Defendant’s employees Ronald Sikorski and Erika Ocegueda—who handled Defendant’s employees’ requests for medical leaves and accommodations—were unfit, incompetent, and unqualified for their positions.

Plaintiffs’ motion complies with CRC Rule 3.1324(a) as it provides (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. (CRC, Rule 3.1324(b).)

Absent prejudice to the adverse party, the court may permit amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [internal quotes omitted].) By failing to oppose, Defendant has not demonstrated it will be unduly prejudiced by the amendment. 

Therefore, leave to amend is appropriate. This conclusion is consistent with the “policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits.”  (Bd. of Trustees v. Superior Ct. (2007) 149 Cal. App. 4th 1154, 1163.) The court makes no conclusion on the merits as to the new claim. Rather, the “better course of action” is to permit the amendment, “and then let the parties test its legal sufficiency in other appropriate proceedings.”  (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 760.) 

Accordingly, on good cause shown, Plaintiff’s Motion for Leave is GRANTED.

A stand-alone FAC must be filed and served to all current parties within 10 days.  Any new parties must be served in a timely manner as provided by law.

Moving party to give notice, unless waived.  

IT IS SO ORDERED.

Dated:  March 1, 2024 ___________________________________