Judge Theresa M. Traber, Case 21STCV04765 2022-09-27 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV04765, Date: 2022-09-27 Tentative Ruling

Case Number: 21STCV04765 Hearing Date: September 27, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: September 27, 2022 TRIAL DATE: May 1, 2023

CASE: Robert Ware v. Department of Public Social Services

CASE NO.: 21STCV04765

SECOND 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 Second Motion for leave to file a Third Amended Complaint is GRANTED IN PART with respect to the Second Cause of Action for Discrimination under FEHA against the County of Los Angeles only.

Plaintiff is directed to file, within 30 days of the date of this order, a new version of the Third Amended Complaint maintaining the First Cause of Action for Retaliation under FEHA against the County of Los Angeles only, adding the Second Cause of Action for Discrimination under FEHA against the County of Los Angeles only, and excising the third, fourth, and fifth causes of action and their accompanying prayers for relief.

Portions of the Third Amended Complaint which are not in compliance with this order, whether by failing to excise these causes of action, adding additional causes of action, or adding additional parties, will be stricken.

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 Defendant Sylvia Chasco with new allegations of fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment.

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 is evident from the proposed Third Amended Complaint, that it reinstates the action against dismissed Defendant Chasco with new causes of action against her. 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 procedural requirements for the motion itself.

Supporting Declaration

The Declaration of Plaintiff Robert Ware accompanying the motion is virtually identical to the declaration filed with the previous motion for leave to file a third amended complaint, and thus retains virtually all of the defects the Court identified in its August 5, 2022 minute order. The declaration 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 previously dismissed Defendant Chasco with new causes of action. (See Declaration of Robert Ware ISO Mot. ¶¶ 3-7.) In general, then, the Declaration does not comply with Rule 3.1324(b)(1) by stating the effect of the proposed amendments.

Once again, 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 Defendant Chasco or add new causes of action against her. 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 new allegations against Defendant Chasco. 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.)

In the Court’s ruling on Plaintiff’s first motion for leave to file a third amended complaint, the Court stated that this was not sufficient explanation for why Plaintiff only now moves for leave to file a third amended complaint. With respect to the new causes of action against Defendant Chasco, that assessment remains. Plaintiff has not justified the addition of new causes of action against a previously dismissed Defendant. Furthermore, Plaintiff’s continued conduct and statements in this regard is strongly suggestive of 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 from Plaintiff’s claims, dismissing the causes of action against certain Defendants when the Court appears inclined to rule in Defendants’ favor, and then reinstating dismissed Defendants to draw the case out.

At the hearing on Plaintiff’s previous motion for leave to amend, Plaintiff repeatedly professed that he did not intend to reinstate dismissed causes of action or dismissed defendants, and that the language in the proposed Third Amended Complaint to the contrary was an oversight. Perhaps that was so. However, after the Court’s August 5, 2022 ruling, Plaintiff was on notice that such defects would not be tolerated. For Plaintiff to file a second motion for leave to amend with virtually identical defects demonstrates either an extreme lack of care in preparing his filings or, as stated above, an intention to misuse the Court’s procedures.

The Court finds that Plaintiff has not complied with the requirements of Rule 3.1324(b)(3)-(4).

Defendant’s Opposition

Defendant County 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 discrimination against the County, and under the third cause of action for fraudulent misrepresentation, fourth cause of action for negligent misrepresentation, and fifth cause of action for fraudulent concealment against Defendant Chasco.

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 County, as in its opposition to the previous motion, argues that Plaintiff’s second cause of action is barred because Plaintiff did not include the claim against the County in his administrative complaint. This conclusory statement is not sufficient to invalidate the cause of action at this stage.

Defendant County also argues that the third, fourth, and fifth causes of action against Defendant Chasco are barred for failure to exhaust administrative remedies under Government Code section 12960(d) and Code of Civil Procedure section 340. Neither party presents the administrative record at issue in this case to show whether Defendant Chasco was named in that document. Defendant has therefore failed to show that Plaintiff failed to exhaust his administrative remedies in this respect.

Defendant’s final argument, however, is more meritorious. Defendant argues that the third, fourth, and fifth causes of action are invalid and cannot be cured by further amendment under government investigative immunity.

A public employee is not liable for injury caused by instituting or prosecuting any judicial or administrative proceeding within the scope of that person’s employment, even if they act maliciously and without probable cause. (Gov. Code § 821.6.) “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov. Code § 815.2.) “Although Government Code section 821.6 has primarily been applied to immunize prosecuting attorneys and other similar individuals, this section is not restricted to legally trained personnel but applies to all employees of a public entity.” (Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436 disapproved on other grounds in Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798.) This immunity also applies to a public employee's statements relating to an investigation or proceeding, as long as there is “a causal relationship between the publication and the prosecution process.”(Ingram v. Flippo, (1999) 74 Cal.App.4th 1280; citing Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, 1499.)

In Kemmerer, the county’s director of social services dismissed a permanent civil service employee. (Id. at 1429.) The appellate court found that the county and director were “immune from tort liability for any acts done to institute and prosecute the disciplinary proceeding” against the civil service employee, including “[t]he investigation, the preliminary notice and the proceedings before the civil service commission.” (Id. at 1437.)

Here, even construing the allegations in favor of Plaintiff, all the alleged misrepresentations, including the alleged letter of reprimand (Proposed TAC ¶ 35), phone call (Proposed TAC ¶¶ 36-37), and the alleged secret personnel file (Proposed TAC ¶ 77) are all actions which Plaintiff alleges were taken by the named individuals, including Defendant Chasco, under the authority and duties bestowed upon them by their positions. Efforts to notify a plaintiff of the results of an investigation are cloaked by immunity under Government Code § 821.6. (See, e.g, Amylou R. v. Cty. of Riverside (1994) 28 Cal. App. 4th 1205, 1210-1211 [holding that statements made to the plaintiff in the course of an investigation were “incidental to the investigation” and therefore immune]; Ingram v. Flippo (1999) 74 Cal. App. 4th 1280, 1293 [holding that statements concerning an investigation that were made in a press release “were part of the prosecution process” and therefore immune].) Furthermore, the alleged correspondence letter (Proposed TAC ¶ 48) and performance evaluation (Proposed TAC ¶ 49) do not appear to bear on Plaintiff’s misrepresentation or concealment claims whatsoever. Plaintiff’s claims against Defendants for misrepresentation and concealment are barred by investigative immunity. This is an absolute privilege, and thus, is not curable by any proposed amendment.

The Court therefore finds that the third, fourth, and fifth causes of action against Defendant Chasco in the proposed Third Amended Complaint fail to state a cause of action against Defendant Chasco 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 states 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, and that 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 grave 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, dismissing the causes of action against certain Defendants when the Court appears inclined to rule in Defendants’ favor, and then those Defendants to draw these proceedings out. The Court therefore finds that there is a substantial 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 strong indication of bad-faith tactics by Plaintiff, and the proposed third amended complaint states not one, but three causes of action that are deficient as a matter of law. However, as in the previous motion, 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.

In the interest of judicial efficiency and in permitting this action to move forward with meritorious causes of action, the Court will grant leave to amend to maintain the First Cause of Action for Retaliation under FEHA against the County of Los Angeles and add the Second Cause of Action for Discrimination under FEHA against the County of Los Angeles only.

Plaintiff is directed to file a new version of the Proposed Third Amended Complaint which excises the third, fourth, and fifth causes of action and their accompanying prayers for relief. Portions of the Third Amended Complaint which are not in compliance with this order, whether by failing to excise these causes of action, adding additional causes of action, or adding additional parties, will be stricken.

CONCLUSION:

Accordingly, Plaintiff’s Second Motion for leave to file a Third Amended Complaint is GRANTED IN PART with respect to the Second Cause of Action for Discrimination under FEHA against the County of Los Angeles only.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 27, 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.