Judge Theresa M. Traber, Case 21STCV04765 2022-08-05 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV04765, Date: 2022-08-05 Tentative Ruling

Case Number: 21STCV04765 Hearing Date: August 5, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 5, 2022 TRIAL DATE: May 1, 2023

CASE: Robert Ware v. Department of Public Social Services

CASE NO.: 21STCV04765

MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

MOVING PARTY: Plaintiff Robert Ware

RESPONDING PARTY(S): Defendant County of Los Angeles

CASE HISTORY:

02/08/21: Complaint filed.
06/01/21: First Amended Complaint filed
11/23/21: Second Amended Complaint filed
06/09/22: Dismissal entered as to Defendants Arnetta Counts, Marina Cooper, and Deitra Whitaker

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment action. Plaintiff alleges discrimination, harassment, fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment arising from his employment with the Department of Public Social Services.

Plaintiff moves for leave to file a third amended complaint.

TENTATIVE RULING:

Plaintiff’s Motion for leave to file a Third Amended Complaint is DENIED.

Plaintiff is granted leave to file a new Motion for Leave to File a Third Amended Complaint with respect to the proposed Second Cause of Action for Discrimination under FEHA against the County of Los Angeles only. Plaintiff shall have 30 days from the date of this order to file such a motion.

DISCUSSION:

Plaintiff seeks leave to file a third amended complaint to add a new cause of action for discrimination, add allegations identifying County of Los Angeles as a Defendant, and reinstate the action against dismissed Defendants Counts, Cooper, and Whitaker.

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

Plaintiff attached a copy of the proposed first amended complaint to the motion. Plaintiff has complied with California Rule of Court 3.1324(a)(1).

Plaintiff has also indicated 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). (Motion at p.4.) However, although the motion states that it is amending the SAC as filed, it does not indicate, as evident from the proposed Third Amended Complaint, that it reinstates causes of action against the dismissed Defendants. Nevertheless, in light of the liberal standard for amending the pleadings, the Court finds that Plaintiff has complied with Rule 3.1324(a)(2) and (a)(3).

Thus, the Court finds that Plaintiff has complied with the requirements for the motion itself.

Supporting Declaration

The Declaration of Plaintiff Robert Ware accompanying the motion does not state the effect of the proposed amendments. Although the Declaration identifies the proposed additions relative to the Second Amended Complaint, the Declaration does not state that the practical effect of the Third Amended Complaint is to reinstate the previously-dismissed causes of action as to the dismissed individual Defendants. (See Declaration of Robert Ware ISO Mot. ¶¶ 3-7.) The Declaration also does not state that the effect of the proposed amendment is to reinstate the fourth cause of action for negligent misrepresentation against Defendant County of Los Angeles after the Court had already sustained the County’s demurrer on this cause of action without leave to amend. (April 6, 2022 Minute Order.) The Declaration does not comply with the Rule 3.1324(b)(1) requirement to state the effect of the proposed amendments.

The Declaration does not state why the amendments are necessary and proper. In the body of Plaintiff’s motion, Plaintiff states that the motion is necessary because the Second Cause of Action for discrimination, originally filed against Marina Cooper only, should have named the County as a Defendant to that cause of action, and relief from that cause of action should have been requested from the prayer. (Motion pp. 4-5.) Neither the motion nor the declaration states why it is necessary to reinstate the causes of action against the dismissed individual defendants. The Declaration therefore does not comply with Rule 3.1324(b)(2) by stating why the amendments are necessary and proper.

The Declaration also does not state when the facts giving rise to the amended allegations were discovered, as required by California Rule of Court 3.1324(b)(3), or why amendment was not sought earlier, as required by Rule 3.1324(b)(4). Plaintiff states that he discovered that the second cause of action and prayer needed to be amended when reviewing the file to prepare for a Case Management Conference. (Ware Decl. ¶ 8.) Plaintiff does not specify when this occurred, nor does he state when he discovered the facts giving rise to the reinstated allegations against the individual Defendants. Plaintiff states that the reason the request for amendments was not made earlier is because Plaintiff “was contemplating other options to ensure defendant could be held liable for discrimination.” (Id. ¶ 9.) This is not an explanation for why Plaintiff only now moves for leave to file a third amended complaint. In fact, Plaintiff’s conduct and statements in this regard suggests an intent to misuse the Court’s procedures as a tactic to delay, harass, and inconvenience Defendants and increase their legal costs by forcing Defendants to defend themselves against Plaintiff’s claims by first dismissing the causes of action against certain Defendants when the Court appears inclined to rule in Defendants’ favor, and then reinstating the causes of action to draw these proceedings out. The Court finds that Plaintiff has not complied with the requirements of Rule 3.1324(b)(3)-(4).

Defendant’s Opposition

Defendant opposes Plaintiff’s motion for leave to file the TAC on the grounds that the motion is unfairly prejudicial to Defendant and fails to state facts sufficient to support a cause of action under the second cause of action for FEHA discrimination against the County and the fourth cause of action for negligent misrepresentation against the County.

1. Failure to State a Valid Cause of Action

The Court’s discretion to allow amendments to the pleadings “should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390).)

Defendant argues that Plaintiff’s second cause of action is barred by the one-year statute of limitations under Government Code section 12960(d) and Code of Civil Procedure section 340. Defendant argues that since Plaintiff alleges that he received a right to sue letter under FEHA on January 12, 2021, the last day to file the FEHA claim against the county was January 11, 2022. However, it is undisputed that Plaintiff filed the Second Amended Complaint on November 23, 2021, in which Plaintiff asserted the same causes of action and alleged the same facts against the individual defendants. The Court finds that the second cause of action arises from the same general set of facts and is thus not barred by the statute of limitations under the relation back doctrine. (See Austin v. Mass. Bonding & Ins. Co. (1961) 56 Cal.2d 596, 601-603.)

Defendant also argues that the fourth cause of action for negligent misrepresenta-tion is barred against the County because the Court sustained Defendant’s demurrer without leave to amend on April 6, 2022. Defendant is correct: Plaintiff is not entitled to bring this cause of action against the County a second time.

The Court therefore finds that the fourth cause of action in the proposed Third Amended Complaint fails to state a cause of action against the County as a matter of law.

2. Unfair Prejudice

Defendant contends that Plaintiff should not be granted leave to amend as doing so would cause substantial unfair prejudice to Defendant.

Leave to amend should be denied when the proposed amendment will unfairly prejudice the defendant. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Prejudice exists where the amendment would result in loss of critical evidence, added costs of preparation, increased burden of discovery, etc. (Ibid. at pp. 486-488.) Courts have consistently refused to allow an amendment when it would require a defendant to conduct new discovery and would shift the tenor of the case. (Ibid. at pp. 486-487 [finding that prejudice justified denial of leave to amend when it would require the deposition of new witnesses and “would have changed the tenor and complexity of the complaint and its original focus”]; Gamble v. General Foods Corp. (1991) 229 Cal.App.3d 893, 897 [denying leave to amend where “amendment of the pleadings would necessitate new discovery”].)

Defendant contends that reintroducing dismissed individual defendants and adding a new cause of action against the county would be unfairly prejudicial to Defendant. Defendant also contends that a new demurrer would need to be filed to address allegations already adjudicated by the Court with respect to the fourth cause of action, as well as the causes of action against individual Defendants which were demurred to but not ruled upon. Defendant also discloses an intention to file a motion for summary judgment in this matter and contends that the motion will likely be substantially delayed by the addition of new causes of action and re-addition of defendants, arguing this will likely result in a delay in trial. Plaintiff has not replied to the opposition. These contentions, by themselves, are not sufficient to show a risk of unfair prejudice. The issues raised in the Third Amended Complaint are not novel to this case, and given the largely unchanged nature of the actual material allegations, the burden of discovery has not changed. Neither has Defendant shown that the addition of the individual Defendants has put the County in a position any more adverse than when the Second Amended Complaint was filed.

However, as stated above, the Court has serious concerns as to whether this motion represents an attempt by Plaintiff to burden Defendant with misuse of the Court’s procedures as a tactic to delay, harass, and inconvenience Defendants and increase their legal costs by forcing Defendants to defend themselves from Plaintiff’s claims, by dismissing the causes of action against certain Defendants when the Court appears inclined to rule in Defendants’ favor and then reinstating the causes of action to draw these proceedings out. The Court therefore finds that there is some risk of unfair prejudice.

Although there is a strong presumption in favor of permitting leave to amend, that presumption is not absolute. Here, Plaintiff’s motion is substantially defective and noncompliant with the Rules of Court, there is indication of possible bad-faith tactics by Plaintiff, and the proposed third amended complaint states one cause of action that is deficient as a matter of law. However, the proposed third amended complaint also states one new cause of action against the county that is neither invalid on its face nor unfairly prejudicial to the County. Were it not for the numerous other defects in the motion, declaration, and proposed complaint, the Court would be inclined to grant leave to amend as to that cause of action, and a procedurally sound motion requesting such an amendment would likely be granted.

Under these circumstances, the Court does not think it warranted to grant leave to file a third amended complaint. However, the Court will exercise its discretion to permit Plaintiff leave to file a new Motion for Leave to File a Third Amended Complaint with respect to the Second Cause of Action for Discrimination under FEHA against the County of Los Angeles only.

CONCLUSION:

Accordingly, Plaintiff’s Motion for leave to file a Third Amended Complaint is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 5, 2022 ___________________________________

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.