Judge: Teresa A. Beaudet, Case: 23STCV26236, Date: 2024-09-25 Tentative Ruling

Case Number: 23STCV26236    Hearing Date: September 25, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On October 26, 2023, Plaintiff Adriana Aguilar (“Plaintiff”) filed this action against Defendants S.D. 34 Office Inc., dba American Para Professional Systems, Inc. (“APPS”) and Ally Contreras (jointly, “Defendants”).

The Complaint alleges causes of action for (1) discrimination, (2) harassment,

(3) retaliation, (4) failure to prevent discrimination, harassment, and retaliation, (5) failure to provide reasonable accommodations, (6) failure to engage in a good faith interactive process,

(7) wrongful termination in violation of public policy, (8) for declaratory judgment, (9) failure to pay wages, (10) failure to provide meal and rest periods, (11) failure to indemnify for necessary business expenses, (12) failure to provide an accurate itemized wage statement, (13) waiting time penalties, and (14) “Private Attorney General Act.”[2]

            In the Complaint, Plaintiff alleges, inter alia, that “[o]n or about November 2018, Defendants hired Plaintiff to work as a phlebotomist, and in approximately May 2023, Defendant switched Plaintiff’s position to a customer service representative.” (Compl., ¶ 20.) “During the hiring process, Plaintiff alerted Defendant that she had a medical condition and/or disability which would require Plaintiff to take occasional time off for doctors’ appointments.” (Compl., ¶ 30.) “Throughout May and June 2023, Plaintiff was placed off work following a doctor’s visit, yet Defendants required Plaintiff to continue working against her doctor’s restrictions.” (Compl., ¶ 33.) “Following a doctor mandated leave from June 22 through June 25, 2023, on July 6, 2023, Defendant terminated Plaintiff’s employment.” (Compl., ¶ 34.)

Plaintiff alleges that “Defendants discriminated and retaliated against Plaintiff by failing to provide agreed upon accommodations for Plaintiff’s medical leave, and by terminating Plaintiff for engaging in a protected activity.” (Compl., ¶ 35.) Plaintiff further alleges that “Defendants, including Defendant CONTRERAS, also subjected the Plaintiff to harassment by subjecting Plaintiff to a hostile work environment and forcing her to work in contravention of her doctor’s restrictions.” (Compl., ¶ 36.)

            Plaintiff now moves for “an order permitting the filing of a First Amended Complaint, which (1) adds a Negligent Supervision and Retention [sic]; (2) seeks an Order to add Defendant Sonia Hernandez as an individual Defendant; and, (3) to also include specific allegations relating to the alleged cause of action, as well as newly acquired factual allegations in support of the causes of action.” Defendants oppose.

Discussion

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., § 576.)  “[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 (2010) 184 Cal.App.4th 1422, 1428 [internal citations omitted].) “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. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.)

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. (Ibid.) 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), emphasis added.)

Exhibit 3 to Plaintiff’s counsel’s declaration is a copy of the proposed First Amended Complaint (“FAC”). (Perez-Casillas Decl., p. 14.) In addition, Exhibit 4 to Plaintiff’s counsel’s declaration is a copy of the proposed FAC with redline changes. (Perez-Casillas Decl., p. 14.)

The proposed FAC adds a new cause of action for negligent supervision and retention which alleges, inter alia, that “Defendant APPS had reason to know that Defendant HERNANDEZ created a risk or threat of harassment and/or injury to Plaintiff, as alleged herein, due to previous complaints and Plaintiff’s complaint of Defendant HERNANDEZ’s behavior, including but not limited to Defendant HERNANDEZ’s harassment of Plaintiff and ratification by Defendant APPS through Defendant CONTRERAS…Defendant APPS breached its duties by failing to properly supervise or control INDIVIDUAL HARASSERS; and by failing to terminate the employment of INDIVIDUAL HARASSERS so that Plaintiff could work in a reasonably safe environment free from discrimination, hostility, intimidation, and harassment.” (Perez-Casillas Decl., p. 14, Ex. 4, ¶¶ 136-137.) The proposed FAC also includes additional factual allegations and names Sonia Hernandez as a defendant. (Perez-Casillas Decl., p. 14, Ex. 4.)

Plaintiff’s counsel states that “[t]he proposed First Amended Complaint accomplishes several things: (1) It adds new facts after receiving evidence from written discovery and through deposition testimony; (2) In [sic] adds Defendant Sonia Hernandez as an individual harasser; (3) It adds a cause of action for Negligent Supervision and Retention; (4) It adds factual allegations language to support Plaintiff’s theory of liability in support of the cause of action.” (Perez-Casillas Decl., ¶ 12.)

As an initial matter, as noted by Defendants, Plaintiff’s counsel’s supporting declaration does not specify “[w]hen the facts giving rise to the amended allegations were discovered,” or “[t]he reasons why the request for amendment was not made earlier.” (Cal. Rules of Court, rule 3.1324, subds. (b)(3)-(4).) As set forth above, the requirements of California Rules of Court, rule 3.1324, subdivision (b) are mandatory. Plaintiff appears to submit evidence in connection with the reply to show that “Plaintiff now includes Defendant Sonia Hernandez for harassment after obtaining testimony from third-party witness Maricela Perez…” (Reply at p. 3:20-21.) However, Defendants have not had the opportunity to address such evidence submitted with the reply. The Court notes that “¿[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.¿” (¿Jay v. Mahaffey¿(2013) 218 Cal.App.4th 1522, 1537¿.)[3]

Defendants also argue that Plaintiff “unreasonably delayed in seeking to amend.” (Opp’n at p. 14:24.) Defendants assert that “[t]he redline of the proposed FAC demonstrates that the only new allegations desscribe [sic] Plaintiff’s own experiences during her employment. See Perez-Casillas Decl., Ex. 3, ¶ 33 (what Plaintiff claims to have told the company), ¶ 34 (identifying alleged disability as obesity), ¶ 35 (listing doctor’s appointments), ¶ 38 (describing alleged mistreatment by Sonia). Plaintiff’s motion entirely fails to address when Plaintiff discovered these facts or why they could not have been alleged earlier because…this information was necessarily known to Plaintiff at least 14 months ago when she still worked at APPS.” (Opp’n at pp. 14:27-15:5, emphasis omitted.) Plaintiff does not appear to address this point in the reply. As discussed, Plaintiff’s counsel’s supporting declaration does not specify “[w]hen the facts giving rise to the amended allegations were discovered,” or “[t]he reasons why the request for amendment was not made earlier.” (Cal. Rules of Court, rule 3.1324, subds. (b)(3)-(4).)

Defendants also argue that “Plaintiff’s failure to name Sonia as a defendant within the court’s prescribed timeframe provides an additional basis for denying leave to amend.” (Mot. at p. 16:4-5.) Defendants cite to the Court’s February 26, 2024 Case Management Conference Order, which provides, inter alia, “5/31/24 Nonappearance date by which Plaintiff agrees and Court orders Plaintiff to serve all doe defendants or file a dismissal. If neither occurs, the Court will dismiss the Does.” Defendants note that on May 31, 2024, the Court issued a minute order providing, inter alia, that “[p]roof of service or a dismissal has not been filed as to the doe defendants as of this date. Pursuant to the Case Management Order filed February 26, 2024 the does are dismissed this date as follows: The Court orders Doe(s) 1 through 20, inclusive, in Complaint filed by ADRIANA AGUILAR on 10/26/2023 dismissed without prejudice.”

Defendants assert that “[n]early two months later, on July 29, 2024, in apparent disregard of the Court’s May 31, 2024 order, Plaintiff filed an amendment form, purportedly renaming one of the already-dismissed Doe defendants as Sonia Hernandez.” (Opp’n at p. 8:7-9.) On July 29, 2024, Plaintiff filed an Amendment to Complaint naming Sonia Hernandez in place of Doe 1. Plaintiff does not appear to address this point in the reply. However, the foregoing argument appears to concern the deficiency of Plaintiff’s July 29, 2024 Amendment to Complaint, not Plaintiff’s instant motion for leave to file the FAC to include, inter alia, Sonia Hernandez as a defendant.

Defendants also argue that “Plaintiff’s delayed amendment would prejudice Defendants.” (Opp’n at p. 16:6.) Defendants assert that “[t]he amendment will require, at minimum, another deposition of Plaintiff and additional written discovery, which will impose additional costs on Defendants.” (Opp’n at p. 16:9-11.) Defendants also argue that “given the admissions from her deposition, Defendants have told Plaintiff that they are preparing a summary judgment motion. With the current trial date, the latest day that this motion could be heard in this Department is March 13, 2025, and the motion must be filed and served during the week of December 19, 2024. However, creating a situation where Defendants would be required to resume discovery and postpone their summary judgment motion until the last possible moment is itself prejudicial since this will create likely issues in securing one of the limited number of hearing dates and force Defendants to incur expenses to prepare for trial that could be avoided if the motion was heard and granted earlier.” (Opp’n at p. 16:16-24.) In addition, Defendants argue that “the earliest available hearing date for a demurrer…is currently December 11, 2024 (and will likely be even later once a demurrer is drafted). This will almost certainly be after the last possible date to file a motion for summary judgment.” (Opp’n at p. 17:5-9, emphasis omitted.)

In the reply, Plaintiff counters that granting leave to amend will not severely prejudice Defendants. Plaintiff asserts that “Defendants will still be within their timeframe to file a motion for summary judgment/adjudication, trial is currently seven (7) months away, and Defendant has deposed Plaintiff and the third-party witness who provided notice that Sonia Hernandez created a particular risk of harm. On the other hand, the amendments are necessary because Plaintiff seeks to include all causes of action to ensure to hold the same Defendant accountable for its negligence.” (Reply at p. 7:5-9.)

Defendants also argue that Plaintiff’s counsel’s supporting declaration “consists of inadmissible evidence that lacks foundation and contradicts Plaintiff’s own testimony,” such that “Plaintiff fails to establish that justice will be served by the amendment.” (Opp’n at pp. 10:19; 14:5-6.) In addition, Defendants argue that “Plaintiff’s motion should be denied because the amendment is futile.” (Opp’n at p. 17:19.) However, the Court does not find that the asserted legal deficiency of the proposed FAC warrants denial of leave to amend. (See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“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”]¿.)

However, in light of Plaintiff’s failure to comply with California Rules of Court, rule 3.1324, subdivision (b), the Court denies Plaintiff’s motion without prejudice.  

Conclusion

Based on the foregoing, Plaintiff’s motion for leave to file a first amended complaint is denied without prejudice.  

Plaintiff is ordered to give notice of this ruling.

DATED:  September 25, 2024                                   

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court