Judge Theresa M. Traber, Case 20STCV45137 2023-04-06 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV45137, Date: 2023-04-06 Tentative Ruling

Case Number: 20STCV45137 Hearing Date: April 6, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 6, 2023 TRIAL DATE: July 18, 2023

CASE: Tyler Doyel, et al. v. Emily Grene Corp., et al.

CASE NO.: 20STCV45137

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

MOVING PARTY: Plaintiffs Tyler Doyel, Dana Neer Jr., Dana Neer Sr., and Colin Fry

RESPONDING PARTY(S): Defendants Emily Grene Corp., Ohio Casualty Ins. Co, and Developers Surety and Indemnity Co.

CASE HISTORY:

· 11/24/20: Complaint filed.

· 04/09/21: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a wrongful termination action. Plaintiffs allege age and disability discrimination, harassment, and retaliation and various Labor Law claims and related causes of action.

Plaintiffs move for leave to file a second amended complaint.

TENTATIVE RULING:

Plaintiffs’ Motion for Leave to File a Second Amended Complaint is GRANTED. Plaintiffs are to file their proposed Second Amended Complaint as a stand-alone document within five (5) days of this Order.

DISCUSSION:

Plaintiffs move for leave to file a Second Amended Complaint.

Legal Standard

The Court may, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, . . . allow the amendment of any pleading.” (Code Civ. Proc. § 576.) A motion to amend a pleading before trial must meet the following requirements:

(a) Contents of motion

A motion to amend a pleading before trial must:

(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.

(b) Supporting declaration

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.

(CRC 3.1324.)

Contents of Motion

Plaintiffs included a copy of the proposed second amended complaint attached to the motion. (Plaintiffs’ Exh. B.) Plaintiffs have therefore complied with California Rule of Court 3.1324(a)(1). Plaintiffs’ motion does not directly indicate which allegations are proposed to be added or deleted by page, paragraph, and line number, as required by California Rule of Court 3.1324(a)(2) and (a)(3). Instead, Plaintiffs have attached a red-lined version of the proposed second amended complaint which provides this information. The Court therefore finds that Plaintiffs have substantially complied with Rule 3.1324 subdivisions (a)(2) and (3).

The Court concludes that Plaintiff has complied with the requirements for the motion itself.

Supporting Declaration

The Declaration of Richard E. Donahoo states that the effect of the proposed amendments is to (1) name Ohio Casualty Ins. Co, and Developers Surety and Indemnity Co., previously identified as Doe Defendants 151 and 152, as Defendants in this action; (2) add “specific facts as to the surety defendants and their bonds and the projects they bonded; (3) to attach copies of the bonds; (4) to add facts related to Plaintiffs’ termination, and (5) to add a cause of action for retaliation under Labor Code §1102.5. (Declaration of Richard E. Donahoo ISO Mot. ¶ 10.) The Declaration complies with Rule 3.1324(b)(1).

The Declaration also states that these amendments will allow the complaint to conform to proof and to permit the parties to litigate the pleadings in their proper form and with the inclusion of facts that have been discovered since the filing of the First Amended Complaint. (Donahoo Decl. ¶¶ 11-12.) The Court therefore finds that the Declaration substantially complies with Rule 3.1324(b)(2) by stating why these amendments are necessary and proper.

The Declaration does not clearly states when the facts giving rise to these amendments were discovered. Although Mr. Donahoo states that additional facts were discovered “[s]ince the filing of the FAC, in April 2021,” the declaration provides no further details on what facts were discovered, nor when they were discovered. (Donahoo Decl. ¶ 10.) Even under the strong presumption in favor of permitting leave to amend, such a factually devoid statement is not sufficient to satisfy the requirements of Rule 3.1324(b)(3). Similarly, the Declaration makes no effort whatsoever to explain the gap between June 24, 2021, when the new defendants were identified, and the date this motion was filed. (See Donahoo Decl. ¶ 8.) “[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) Although they do not explain the specific information uncovered at that time, Plaintiffs state in their reply brief that additional facts were discovered in January 2023 following a deposition of Emily Grene’s Person Most Qualified. Based on this contention, the Court finds that Plaintiffs have complied with Rule 3.1324(b)(4).

Defendants’ Objections

Defendant Emily Grene argues that Plaintiffs do not state the effect of the proposed amendments nor why the amendments are necessary and proper. Not so. As demonstrated above, Attorney Donahoo’s declaration directly addresses Rule 3.1324(b)(1) and (2). Defendant Emily Grene also argues that Plaintiffs did not explain when the facts giving rise to these amendments were discovered, nor why the request was not made earlier. As explained above, the Court disagrees.

Defendant Ohio Casualty Insurance Company filed a one-page opposition to this motion stating that Developers Surety and Indemnity Co. is improperly named in paragraph 15 and the proposed fourth cause of action in the proposed Second Amended Complaint. According to Defendant Ohio Casualty, the bonds attached to the proposed second amended complaint state that only Ohio Casualty is the proper defendant to be named in that cause of action. As the Court has found the motion to be otherwise defective, the Court need not rule on this issue. Further, notwithstanding the procedural errors in the motion, the Court does not think it proper to rule on the merits of a cause of action in the context of a motion for leave to amend.

CONCLUSION:

For the reasons above, Plaintiffs’ Motion for Leave to File a Second Amended Complaint is GRANTED. Plaintiffs are to file their proposed Second Amended Complaint as a stand-alone document within five (5) days of this Order.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: April 6, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.