Judge Teresa A. Beaudet, Case Number: 21STCV31343, Date: 2023-08-15 Tentative Ruling

Plaintiff Irene Chizu Tsuzuki (“Plaintiff”) filed this action on August 24, 2021 against Defendants Nissin Foods (U.S.A.) Company Inc. (“Nissin”), Mike Price (“Price”), Kevin Ishimaru (“Ishimaru”), and Kalei Soong (“Soong”). The Complaint asserts causes of action for (1) discrimination in violation of FEHA, (2) hostile work environment harassment in violation of FEHA, (3) retaliation in violation of FEHA, (4) failure to provide reasonable accommodation in violation of FEHA, (5) failure to engage in the interactive process in violation of FEHA, (6) failure to prevent discrimination, harassment, or retaliation in violation of FEHA, (7) breach of express oral contract not to terminate employment without good cause, (8) breach of implied-in-fact contract not to terminate employment without good cause, (9) negligent hiring, supervision, and retention, (10) wrongful termination of employment in violation of public policy, (11) whistleblower retaliation (Labor Code § 1102.5), and (12) intentional infliction of emotional distress.

On March 4, 2022, the Court issued an Order overruling defendants’ demurrer to the second cause of action as to Price and Nissin and sustaining defendants’ demurrer to the second cause of action as to Soong and Ishimaru, with leave to amend. The Court also sustained defendants’ demurer to the twelfth cause of action, without leave to amend. (See March 4, 2022 Order.) Plaintiff did not thereafter file any amended Complaint.

On July 18, 2023, the Court issued an Order denying Plaintiff’s previous motion for an order permitting her leave to file a First Amended Complaint without prejudice.

Plaintiff now moves again for leave to file a First Amended Complaint. Nissin and Price (jointly, “Defendants”) oppose.

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (¿¿Cal. Rules of Court, rule 3.1324, subd. (a).)¿¿ The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (¿Cal. Rules of Court, rule 3.1324, subd¿. (a).) Finally, “¿[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 of Court, Rule 3.1324, subd. (b).)

Plaintiff’s motion includes a redlined version of the proposed First Amended Complaint, which shows the proposed changes to the operative Complaint. (Yenoki Decl., ¶ 2, Ex. 1.) Plaintiff seeks to, inter alia, amend the first cause of action for discrimination to add allegations of discrimination on the bases of race, national origin, and ancestry. (Yenoki Decl., ¶ 2, Ex. 1, p. 11.) Plaintiff seeks to amend the Complaint to add allegations that Plaintiff is Japanese, and that “Price, who is Caucasian…exhibited discriminatory behavior and animus toward employees of Japanese race, ancestry, and national origin.” (Yenoki Decl., ¶ 2, Ex. 1, pp. 4, 9.)

Plaintiff’s counsel asserts that “[t]he amendment is necessary because the added new categories of Race, National Origin, and Ancestry will allow the parties to expand the scope of both written and oral discovery. The amendment is also proper because it was filed shortly after plaintiff’s new attorney had an opportunity to review the deposition transcript of Hiroshi Kika in June 2023.” (Yenoki Decl., ¶ 12, emphasis in original.)

Plaintiff’s counsel indicates that “[o]n February 15, 2023, Plaintiff deposed Human Resource Manager Hiroshi Kika (‘Mr. Kika’). During Mr. Kika’s deposition, newly discriminatory comments against employees of Japanese origin was discovered, which were not known to Plaintiff or her counsel prior to filing Plaintiff’s operative complaint. Mr. Kika testified to numerous racist remarks made by individual Defendant and President Mike Price…towards people of Japanese national origin…” (Yenoki Decl., ¶ 13, emphasis omitted.) Such testimony is set forth in paragraph 13 of Plaintiff’s counsel’s declaration. (Yenoki Decl., ¶ 13.)

Plaintiff’s counsel states that Plaintiff received the deposition transcript of Mr. Kika on March 2, 2023. (Yenoki Decl., ¶ 14.) Plaintiff’s counsel indicates that “[a]s soon as Plaintiff’s new attorney of record was assigned to the case, he reviewed the deposition transcript and emailed Defendant on May 15, 2023, to schedule a call with Defendant’s counsel…On May 24, 2023, the parties had a conference call. During this call, Plaintiff informed Defendant about amending her complaint based on the newly discovered information and asked whether Defendant would stipulate to Plaintiff amending her complaint. On June 7, 2023, Defendant stated that they would not stipulate to the filing of the FAC…The next day, Plaintiff made a reservation for a leave to amend her complaint…Plaintiff’s motion for leave to amend her operative complaint was denied without prejudice on July 18, 2023. The following day, plaintiff made a new reservation for a motion to amend her operative complaint.” (Yenoki Decl., ¶ 14, emphasis omitted.)

In the opposition, Defendants assert that they will be prejudiced if the instant motion is granted. Defendants note that this action has been pending for almost two years, as it was filed on August 24, 2021. Defendants’ counsel states that since then, “Plaintiff has propounded, and Defendants have responded to, 90 form interrogatories and 121 requests for production of documents. Defendants have also propounded, and Plaintiff has responded to 81 form interrogatories, 78 special interrogatories, and 68 requests for production of documents. Plaintiff has produced 632 pages of documents and Defendants have produced 942 pages of documents.” (Petroff Decl., ¶ 6.) Defendants’ counsel also indicates that on June 6, 2022 and October 6, 2022, Nissin deposed Plaintiff. (Petroff Decl., ¶ 7.)

In addition, Defendants indicate that they filed a motion for summary adjudication on December 27, 2022, which was noticed for hearing on March 16, 2023. On February 9, 2023, the Court issued a minute order providing, inter alia, that “[p]ursuant to the request of moving party, the Hearing on Motion for Summary Judgment scheduled for 03/16/2023 is continued to 09/28/23 at 10:00 AM in Department 50 at Stanley Mosk Courthouse. The moving party may file and serve a timely Motion for Summary Judgment in lieu of the Motion for Summary Adjudication.” The February 9, 2023 minute order also provides that “[p]ursuant to the request of moving party, the Jury Trial scheduled for 04/19/2023 is continued to 12/06/23...”

In addition, on June 29, 2023, the Court issued a minute order indicating, inter alia, that “[t]he Ex Parte Application to Continue Defendant’s Motion for Summary Adjudication Hearing Date; filed by Irene Chizu Tsuzuki on 06/16/2023 is Granted. Pursuant to the request of moving party, the Hearing on Motion for Summary Judgment scheduled for 09/28/2023 is continued to 10/19/23...”

Defendants assert that “if Plaintiff’s Motion is granted, Defendants must, at a minimum, re-depose Plaintiff to evaluate the newly asserted facts, propound additional written discovery, and withdraw and revise their motion for summary judgment to address Plaintiff’s newly protected categories that serve as the basis for her discrimination claim (or draft a separate motion for summary adjudication as to the newly added protected categories), incurring substantial fees and costs to address Plaintiff’s last minute additional theory of liability.” (Opp’n at p. 6:16-21.) Defendants also indicate that “to allow Defendants sufficient time to conduct this additional discovery, the hearing on Defendants’ motion for summary judgment would need to be continued for a third time and trial would need to be pushed yet again. Defendants’ motion for summary judgment is currently scheduled to be heard on October 19, 2023, which means Defendants must file their moving papers no later than August 4, 2023 – a week and a half before the hearing on Plaintiff’s underlying Motion. Defendants will therefore be forced to withdraw and revise their motion for summary judgment a second time or prepare a separate summary adjudication motion as to Plaintiff’s new discrimination theories.” (Opp’n at p. 6:22-7:1, emphasis in original.)[1]

In the reply, Plaintiff states that she “will be more than willing to cooperate with any necessary extensions in time, continuances of the trial date, and extensions of any related deadlines to assure that all potential claims be properly placed at issue, which amendment of the operative complaint will allow.” (Reply at p. 9:13-16.) Defendants argue that “[a] third hearing continuance and second trial continuance will prejudice Defendants, including individual defendant Mike Price, who have been defending against this meritless litigation for nearly two years.” (Opp’n at p. 7:6-8.)

Defendants also assert that the instant motion is untimely. Defendants contend that Plaintiff’s “lawsuit has been pending for nearly two years…She has had ample opportunity to amend her complaint. She should not be rewarded for dilatory conduct in waiting until February 2023 – eighteen months after she filed this action – to take her first deposition in this case of a witness she first identified as having knowledge of her discrimination claim more than a year before Plaintiff deposed him.” (Opp’n at p. 8:6-10, emphasis omitted.) In the reply, Plaintiff asserts that “[t]o the extent defendants are suggesting undue delay as an excuse to avoid leave to amend on what are meritorious and obviously damaging claims, Tsuzuki was forced to take her first deposition after 18 months because defendants deliberately delayed the discovery process by objecting to plaintiff’s requests to depose key witnesses, numerous times, and did not produce these witnesses until June 2023 — only six short months prior to the trial date of December 6, 2023.” (Reply at p. 7:25-8:2, emphasis omitted.) The Court notes that Plaintiff submits evidence in support of this assertion in connection with the reply, but Defendants have not had the opportunity to respond to it. Thus, the Court does not consider the evidence submitted for the first time in connection with the reply.

Defendants also argue that “Plaintiff’s counsel asked Mr. Kika very specific questions regarding alleged race/national origin discriminatory comments made by Mr. Price which belies any notion that Plaintiff and her counsel did not know about these alleged comments prior to Mr. Kika’s deposition. It is clear from Plaintiff’s counsel’s questioning that Plaintiff was aware of these purported comments prior to the deposition of Mr. Kika.” (Opp’n at p. 8:10-14.) Defendants’ counsel states that, “[f]or example, Plaintiff’s counsel asked Mr. Kika the following: (a) ‘Okay. Did you ever witness Mr. Price make any comments about a shoot the donkey video?’; (b) ‘Did Mr. Price ever accuse employees of Japanese national origin of conspiring against him?’; (c) ‘Did Mr. Price ever make comments about a cultural fit in relation to Japanese candidates for employment?’; (d) ‘Did Mr. Price ever make any comments about job postings for bilingual candidates?’” (Petroff Decl., ¶ 10, Ex. I.) But the Court notes that Mr. Kika’s testimony in response to such questions could not have been known to Plaintiff before Mr. Kika’s deposition was taken.

Lastly, Defendants assert that Plaintiff’s proposed amendments are “futile because Plaintiff does not have a viable discrimination claim based on race, national origin, and ancestry.” (Opp’n at p. 8:26-27) Defendants cite to Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1000, where the Court of Appeal noted that “[g]enerally, motions for leave to amend are liberally granted. However, leave to amend should not be granted where, in all probability, amendment would be futile.” (Internal quotations, citation, and emphasis omitted.) However, the Court notes that in Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048, the Court of Appeal noted that “the preferable practice would be 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.” Thus, the Court does not find that

the asserted legal deficiency of the proposed amendment warrants denial of leave to amend.

As set forth above, “[t]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego, supra, 184 Cal.App.4th at p. 1428 [internal citations omitted].) Based on the foregoing, the Court finds that Plaintiff has demonstrated good cause to amend the Complaint.

In the opposition, Defendants assert that “[i]n the alternative, should this Court decide to grant Plaintiff’s request for leave to amend, Defendants request that the hearing on Defendants’ motion for summary judgment and trial be continued by at least three months to allow Defendants sufficient time to investigate Plaintiff’s newly protected categories.” (Opp’n at p. 10:7-10.) As set forth above, Plaintiff states that she “will be more than willing to cooperate with any necessary extensions in time, continuances of the trial date, and extensions of any related deadlines to assure that all potential claims be properly placed at issue, which amendment of the operative complaint will allow.” (Reply at p. 9:13-16.)

Based on the foregoing, Plaintiff’s motion for leave to file a First Amended Complaint is granted. The Court orders Plaintiff to file and serve the First Amended Complaint within 3 days of the date of this Order.

The Court continues the hearing date on Defendants’ motion for summary judgment or, in the alternative, summary adjudication to _____________, at 2:00 p.m., in Dept. 50.¿

The Court continues the trial date in this matter to _____________, at 9:30 a.m., in Dept. 50.¿

[1]The Court notes that the docket in this matter indicates that Defendants filed a motion for summary judgment or, in the alternative, summary adjudication on August 4, 2023.

IRENE CHIZU TSUZUKI, Plaintiff, vs. NISSIN FOODS (U.S.A.) COMPANY INC., et al., Defendants.	Case No.:	21STCV31343
	Hearing Date:	August 15, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFF IRENE CHIZU TSUZUKI’S MOTION FOR LEAVE TO AMEND OPERATIVE COMPLAINT

Superior Court of California

County of Los Angeles

Department 50