Judge: Salvatore Sirna, Case: 19PSCV00095, Date: 2022-10-12 Tentative Ruling

Case Number: 19PSCV00095    Hearing Date: October 12, 2022    Dept: A

Plaintiff James Suess’s MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

Respondent: Defendants City of Pomona and Does 1-50

TENTATIVE RULING

Plaintiff James Suess’s motion for leave to file third amended complaint is DENIED.

BACKGROUND

Wrongful Termination. Plaintiff was employed as a police officer for the defendant City of Pomona (Pomona) until he was terminated. The Complaint, filed January 29, 2019, asserts causes of action for:

1.      Failure to maintain confidential personnel information pursuant to Penal Code section 832.7

2.1      1.  Violation of Labor Code section 1102.5

    In   2.  Intentional Infliction of Emotional Distress

   3.  Negligent Infliction of Emotional Distress

5.        4.  Termination in Violation of Public Policy

On May 7, 2019, Plaintiff filed a First Amended Complaint, replacing the first cause of action with “invasion of privacy” and asserting a sixth cause of action for violation of Government Code section 3304.

On October 10, 2019, Plaintiff filed a Second Amended Complaint that removed the fifth and sixth causes of action. On August 15, 2022, Plaintiff filed a motion for leave to file a Third Amended Complaint that removed the causes of action for “invasion of privacy” and “negligent infliction of emotional distress” and added a cause of action for violation of Labor Code section 202.

FSC is set for October 11, 2022, and trial is set for November 1, 2022.

ANALYSIS

Plaintiff James Suess’s motion for leave to file Third Amended Complaint is DENIED.

Legal Standard

“A court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code of Civ. Proc., § 473, subd. (a)(1).) The court’s discretion will usually be exercised liberally to permit amendments of the pleadings. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.)¿“A motion to amend a pleading before trial must . . . [s]tate 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 [s]tate 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.”  (Cal. Rules of Court, rule 3.1324(a).)  The declaration must also specify the amendment’s effect, why it is necessary and proper, when the facts supporting the amended allegations were discovered, and why the request was not made earlier.  (Cal. Rules of Court, rule 3.1324(b).)    

If the party seeking the amendment has needlessly delayed, and the delay has prejudiced the opposing party, the court has the discretion to deny leave to amend.  (See 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.  (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) 

Discussion

Plaintiff seeks to add a cause of action for unpaid wages pursuant to Labor Code section 202. Defendants argue Plaintiff’s cause of action is not viable because Labor Code section 220, subdivision (b) states section 202 does not apply to city employees.

Labor Code section 202, subdivision (a) entitles an employee to immediate payment of wages upon resignation. However, Labor Code section 220, subdivision (b) states “[s]ections 200 to 211, inclusive, and [s]ections 215 to 219, inclusive, do not apply to the payment of wages of employees directly employed by any county, incorporated city, or town or other municipal corporation.”Plaintiff alleges in his proposed amended complaint that Pomona failed to convert his sick leave days to vacation days and pay them out following his termination. (Ex. A, ¶ 57-65.) He also requests attorney fees pursuant to Labor Code section 218.5. (Ex. A, p. 13:26-28.) But, he also alleges he “was employed by the City of Pomona” (Ex. A., ¶ 3.) and that Pomona violated section 202 by failing to pay him. (Ex. A., ¶ 63) Thus, the court cannot grant Plaintiff’s motion for leave to file an amended third complaint because he fails to state a viable claim as section 202 does not apply to Plaintiff as an employee of Pomona pursuant to Labor Code section 220, subdivision (b). (See Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 836.)

The Motion is therefore DENIED.