Judge: Robert B. Broadbelt, Case: BC691437, Date: 2023-05-17 Tentative Ruling

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Case Number: BC691437    Hearing Date: May 17, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

 

 

frank depto ;

 

Plaintiff,

 

 

vs.

 

 

st. paul the apostle church , et al.;

 

Defendants.

Case No.:

BC691437

 

 

Hearing Date:

May 17, 2023

 

 

Time:

10:00 a.m.

 

 

 

[Tentative] Order RE:

 

plaintiff’s motion for leave to file fourth amended complaint

 

 

MOVING PARTY:                 Plaintiff Frank Depto

 

RESPONDING PARTIES:     Defendants Roman Catholic Archbishop of Los Angeles (erroneously sued and served as Archdiocese of Los Angeles), St. Paul the Apostle Church, and St. Paul the Apostle School (erroneously sued and served as Saint Paul the Apostle School, Saint Paul the Apostle Catholic School, and Saint Paul the Apostle Catholic Community)     

Motion for Leave to File Fourth Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiff Frank Depto (“Plaintiff”) moves the court for an order permitting him to file a Fourth Amended Complaint against defendants St. Paul the Apostle Church, Archdiocese of Los Angeles, St. Paul the Apostle School, St. Paul the Apostle Catholic School, and Saint Paul the Apostle Catholic Community (“Defendants”) in order to include a request for attorney’s fees.  (Henderson Decl., ¶ 13; Henderson Decl., Ex. 5 [Proposed Fourth Amended Complaint].)  Plaintiff moves for this relief on the ground that Labor Code section 1102.5 was amended on January 1, 2021 to allow for the recovery of attorney’s fees to a prevailing plaintiff under that statute.  (Lab. Code, § 1102.5, subd. (j) [“The court is authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions”].) 

“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….  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….”  (Code Civ. Proc., §¿473, subd. (a)(1).)  “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.) 

The court finds that (1) it is in furtherance of justice to allow Plaintiff to amend his complaint to include a request for attorney’s fees pursuant to Labor Code section 1102.5, and   (2) Defendants have not shown that they will be unduly prejudiced by this limited amendment.  The court therefore grants Plaintiff’s motion.  (Code Civ. Proc., § 473, subd. (a)(1).)

The court notes that Defendants contend, in opposition, that Plaintiff’s request for an award of attorney’s fees pursuant to Labor Code section 1102.5 fails as a matter of law because the 2021 amendment of this statute is presumed to operate only prospectively and would not apply to Plaintiff’s action, which was filed in 2018.  However, “‘the preferable practice [is] to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.’”  (Kittredge Sports Co., supra, 213 Cal.App.3d at p. 1048.)  Thus, Defendants may challenge Plaintiff’s request for attorney’s fees by an appropriate objection or motion.

The court therefore exercises its discretion to allow Plaintiff to file a Fourth Amended Complaint to include a request for attorney’s fees.

ORDER

The court grants plaintiff Frank Depto’s motion for leave to file fourth amended complaint.

The court orders plaintiff Frank Depto to file his Fourth Amended Complaint, in the form attached to the declaration of Daniel B. Henderson as Exhibit 5, no later than 10 days from the date of this ruling. 

The court orders plaintiff Frank Depto to give notice of this ruling.

IT IS SO ORDERED.

 

DATED:  May 17, 2023

 

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court