RULING

After consideration of the briefing filed and oral argument at the hearing, Plaintiff Ziad Canaan’s Motion for Leave to File An Amended Complaint is DENIED.

Counsel for Defendant Law Office of Kenneth Klein, P.C. to give notice.

STATEMENT OF FACTS

This is an employment dispute action. Plaintiff Ziad Canaan (“Plaintiff”) brings suit against Defendant Law Office of Kenneth Klein, P.C. (“Defendant”) alleging the following causes of action:

1. Failure To Pay Minimum Wage (Cal. Labor Code §§ 1182, 1182.12, 11980);

2. Failure To Pay Overtime (Cal. Labor Code § 510);

3. Failure To Provide Meal Breaks (Cal. Labor Code § 226.7);

4. Failure To Provide Rest Breaks (Cal. Labor Code § 226.7);

5. Failure To Compensate All Hours (Cal. Labor Code § 204);

6. Failure To Provide Accurate Wage Statements (Cal. Labor Code § 226);

7. Failure To Maintain Payroll Records (Cal. Labor Code §§ 1174 And 1174.5);

8. Waiting Time Penalties (Cal. Labor Code §§ 201. 202 And 203);

9. Unlawful Retaliation (Whistle Blower – Cal. Labor Code § 1102.5);

10. Constructive Termination In Violation Of Public Policy;

11. Harassment In Violation Of The FEHA – Government Code Section 12940 Et Seq.;

12. Discrimination In Violation Of The FEHA, Government Code Section 12940 Et Seq.;

13. Retaliation In Violation Of The FEHA, Government Code Section 12940 Et Seq.;

14. Failure To Prevent Harassment, Retaliation, And Discrimination In Violation Of The FEHA – Government Code Section 12940 Et Seq.;

15. Failure To Accommodate Disability In Violation Of FEHA; and

16. Failure To Engage In The Interactive Process In Violation Of FEHA.

Defendant filed the instant Motion for Leave to File An Amended Complaint (the “Motion”).

GROUNDS FOR MOTION

Pursuant to Code of Civil Procedure sections 473 and 576, Plaintiff moves for an order granting leave to amend the Complaint to add a cause of action for violation of Business and Professions Code section 17200 et seq. on the ground that the amendment involves the same general facts and allegations already plead.

DISCUSSION

A. Procedural Requirements

Under California Rules of Court Rule, rule 3.1324, subdivision (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.

(Cal. Rules Ct., rule 3.1324(a).)

Under California Rule of Court, rule 3.1324, subdivision (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.

(Cal. Rules Ct., rule 3.1324(b).)

The Court finds that Plaintiff complies with California Rules of Court Rule, rule 3.1324, subdivision (a). Pursuant to California Rules of Court Rule, rule 3.1324, subdivision (b), Plaintiff filed the declaration of Douglas H. Hoang.

B. Analysis

“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.” (Code Civ. Proc., § 473(a)(1).) “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (Code Civ. Proc., § 576.)

The policy in California is that leave to amend is to be granted liberally, to accomplish substantial justice for both parties. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend.” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 531.) “Generally, leave to amend must be liberally granted provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

Here, Plaintiff moves for an order granting leave to amend the Complaint to add a cause of action for violation of Business and Professions Code section 17200 et seq. on the ground that the amendment involves the same general facts and allegations already plead and therefore will not prejudice Defendant. (Motion, pp. 3, 5-7.)

Defendant argues that the Motion should be denied because the proposed amendment is not based upon newly discovered facts but rather seeks to add a cause of action that could have been added when Plaintiff filed the Complaint almost two (2) years ago, and that to permit Plaintiff to amend the Complaint now would prejudice Defendant because it will “¿have to pay additional attorney’s fees and costs in order to reopen Plaintiff’s deposition to question him about facts relevant to this proposed cause of action, not to mention additional written discovery, possible witness depositions and motion practice.” (Opposition, pp. 2-6.)

For the following reasons, the Court finds that Plaintiff unreasonably delayed in seeking leave to add the cause of action and that such delay will prejudice Defendant.

The Court agrees with Defendant that the proposed amendment is not based upon newly discovered facts. The declaration of Douglas H. Hoang does not set forth “[w]hen the facts giving rise to the amended allegations were discovered” as required by California Rules of Court, rule 3.1324, subdivision (b)(3), and the Court agrees with Defendant that the cause of action could have been added when Plaintiff filed the Complaint almost two (2) years ago.

Instead, Plaintiff waited until April 25, 2024, eight (8) months before the scheduled January 28, 2025 trial date, which was scheduled back on May 18, 2023, almost a full year before Plaintiff filed the instant Motion.

The Court also finds that Plaintiff’s delay will prejudice Defendant.

While Plaintiff contends that, since the proposed additional cause of action is based on the same factual allegations already alleged, “¿Defendant has already had the opportunity to conduct discovery,” Plaintiff also effectively concedes that additional discovery may be needed, arguing that “¿as trial was more than ten months from the time Defendant was advised of the proposal to amend the Complaint, Defendant has not and will not be precluded from conducting discovery on this issue,” and that “¿[s]hould Defendant require additional time to address this new cause of action, and so as to avoid any potential prejudice, Plaintiff would not be adverse to a short trial continuance.” (Reply, p. 6.)

The Court finds that having to conduct additional discovery to address the new legal theory will itself prejudice Defendant because, as the parties concede, substantial discovery has already taken place during which Plaintiff could have already alleged the Business and Professions Code section 17200 et seq. claim.

However, due to the Court’s congested docket and trial calendar, the Court cannot accommodate, as suggested by Plaintiff, a “short” trial continuance. Thus, the Court finds that granting leave to amend at this stage would prejudice Defendant because it would create the possibility of a substantial delay in the trial date. (See Solit, supra, 68 Cal.App.4th at 1448 (citing Hirsa, supra, 118 Cal.App.3d at 490) [“Generally, leave to amend must be liberally granted (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939…]), provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation.”].)

Since granting leave to amend at this stage may require Defendant to conduct additional discovery which would then result in a continuance of the trial date, the Court finds Plaintiff’s delay in seeking leave to amend will prejudice Defendant.

In arguing there will be no prejudice, Plaintiff relies on City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, Union Bank v. Wendland (1976) 54 Cal.App.3d 393, overruled by statute on other grounds, and Brady v. Elixir Industries (1987) 196 Cal.App.3d 1299, disapproved of on other grounds by Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238. (Reply at p. 5.) However, the Court finds Plaintiff’s reliance on these cases unpersuasive because those cases involved motions to amend pleadings during or after trial and therefore did not involve the issue of prejudice caused by a delay in trial or added costs of preparation.

Accordingly, for all the foregoing reasons, the Motion is DENIED.