Judge: Salvatore Sirna, Case: 21PSCV00260, Date: 2022-11-14 Tentative Ruling

Case Number: 21PSCV00260    Hearing Date: November 14, 2022    Dept: A

Plaintiff Gustavo Alvarez’s MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Respondent: NO OPPOSITION (as of 10/25)

TENTATIVE RULING

Plaintiff Gustavo Alvarez’s motion for leave to file Second Amended Complaint is GRANTED and the Second Amended Complaint is deemed filed as of this date.

BACKGROUND

In this employment action, Plaintiff Gustavo Alvarez worked as a driver for Defendant Burrtec Waste Industries, Inc. from October 2008 to March 2020. On March 29, 2021, Plaintiff filed a complaint on the behalf of Plaintiff and all other aggrieved employees against Defendant and Does 1 through 100, alleging the violations of Labor Code, section 2698 et seq.

On June 7, 2021, Defendant filed a demurrer to Plaintiff’s complaint on the grounds that the complaint was ambiguous and uncertain. On June 23, Plaintiff responded by filing a First Amended Complaint for the same cause of action against the same defendants with more facts. On August 26, Defendant filed a demurrer to Plaintiff’s First Amended Complaint on the grounds the complaint remained uncertain, does not plead sufficient facts to proceed on a representative basis, has unmanageable and sweeping PAGA claims, and should be denied leave to amend. On November 5, the court overruled Defendant’s demurrer but struck out language pertaining to failure to provide notice of paid sick time and accrual per agreement of counsel.

On November 19, Defendant filed an answer, asserting a general denial and affirmative defenses. On October 20, 2022, Plaintiff filed a motion for leave to file a Second Amended Complaint, seeking to convert the PAGA claims into individual wage and hour claims. Plaintiff’s counsel conferred with Defendant’s counsel over email and spoke over the telephone on September 13, 2022, but were unable to come to an agreement on Plaintiff’s proposed amendment as Defendant wanted Plaintiff to opt out of a separate class action settlement first. (Gonzalez Decl., ¶ 7.)

Hearing on motion is set for November 14, 2022, and a status conference re: mediation is set for February 15, 2023.

ANALYSIS

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 remove the PAGA claim and replace it with individual causes of action for failure to provide employment records, failure to pay overtime, failure to provide rest and meal breaks, failure to pay minimum wage, failure to keep accurate and itemized payroll records, failure to pay all wages owed, failure to pay wages upon termination, failure to reimburse, and violations of Business and Professions Code, section 17200 et seq.

Plaintiff seeks to convert the PAGA claim into individual causes of action on the grounds that the PAGA claims may be resolved by a judgment in another court. (Gonzalez Decl., ¶ 6.) Because the Plaintiff is essentially asserting the same claims in an individual capacity rather than a representative capacity and there is no set date for trial, Plaintiff demonstrated the requisite good cause and a lack of prejudice to justify allowing amendment.

The court notes, however, that Plaintiff’s counsel failed to sign the declaration attached to the moving papers.  The declaration must be signed.

Upon the signing of the declaration filed by Plaintiff’s counsel, the Motion is GRANTED.  The Second Amended Complaint is deemed filed this date.