Judge: Theresa M. Traber, Case: 23STCV06385, Date: 2023-10-18 Tentative Ruling

Case Number: 23STCV06385    Hearing Date: October 18, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 18, 2023                   TRIAL DATE: NOT SET

CASE:                         Lisa Herrera v. Vedi Elin, LLC, et al.

CASE NO.:                 23STCV06385           

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

MOVING PARTY:               Plaintiff Lisa Herrera

RESPONDING PARTY(S): Defendants Vedi Elin, LLC d/b/a The Hummus Republic and Arbi Zaghian

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for whistleblower retaliation that was filed on March 22, 2023. Plaintiff alleges that she was wrongfully terminated for making complaints regarding Defendants’ failure to comply with wage and hour laws.

Plaintiff moves for leave to file a first amended complaint.

TENTATIVE RULING:

Plaintiff’s Motion for Leave to File a First Amended Complaint is GRANTED.

            A stand-alone version of the First Amended Complaint shall be filed with the Court within 5 days of this Order, with Defendants’ answer or other response to be filed according to code. 

DISCUSSION:

Plaintiff moves for leave to file a first amended complaint.

Legal Standard

The Court may, “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars.” (Code Civ. Proc. § 473(a)(1); see also § 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.

(Cal. Rules of Court rule 3.1324.) This discretion 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.) 

Contents of Motion

            Plaintiff included a clean copy of the proposed amended pleading as Exhibit 1 attached to the motion, as required by Rule 3.1324(a)(1). However, the motion does not expressly describe the allegations to be added and deleted, as required by Rule 3.1324(a)(2) and (a)(3). That said, the motion states that Plaintiff seeks to add new causes of action for disability discrimination, disability harassment, and the failure to prevent discrimination and harassment. These causes of action were not asserted in the original Complaint and are presented as the new second, third, and fourth causes of action in the proposed First Amended Complaint. (Plaintiff’s Exh. 1. ¶¶ 32-63.) The body of the motion also recites the material factual allegations added in the proposed First Amended Complaint and identifies them as appearing in paragraphs 13, 17, and 21. (Memorandum of Points & Authorities p.3:14-22.) As the material changes to the pleading are set out in the body of Plaintiff’s moving papers or are otherwise facially apparent, the Court finds that Plaintiff has substantially complied with the requirements of Rule 3.1324(a).

Supporting Declaration

            The Declaration of Navid Kanani filed in support of the Motion does little to demonstrate compliance with Rule 3.1324(b). For example, Plaintiff’s counsel offers no explanation of the effect of the proposed amendments as required by Rule 3.1324(b)(1), nor why the amendments are necessary and proper under subsection (b)(2). However, the moving papers reach substantial compliance with Rule 3.1324(b)(1) because the notice of motion plainly states that the effect is to assert causes of action related to disability discrimination. (Notice of Motion p.2:5-10.) These statements also demonstrate why the amendments are necessary and proper on their face, and therefore constitute substantial compliance with Rule 3.1324(b)(1) and (b)(2). The Declaration states that Plaintiff’s counsel first discovered the facts giving rise to the amended allegations on June 13, 2023, in preparation for a scheduled deposition. (Declaration of Navid Kanani ISO Mot. ¶ 3.) The declaration goes on to state that the parties attempted to meet and confer between June 13, 2023 and August 4, 2023, but were not able to resolve the issue. (Id. ¶¶ 4-7.)  As the factual allegations pertain to Plaintiff’s medical condition, it appears that the facts were known to Plaintiff at all relevant times, but were only recently disclosed to her counsel. Plaintiff has therefore substantially complied with Rule 3.1324(b)(3). Further, by the same statements, Plaintiff has demonstrated that amendment was not sought earlier because the facts were not disclosed to her counsel until June 2023, who thereafter recognized the need for additional causes of action and promptly commenced negotiations regarding amendment. Plaintiff has therefore complied with Rule 3.1324(b) (4) and has thus demonstrated compliance with Rule 3.1324 in its entirety.

Defendants’ Opposition

            Defendants raise numerous objections to the proposed First Amended Complaint.

Defendants first argue that leave to amend should be denied because the proposed First Amended Complaint seeks to allege wholly new causes of action based on violations of the Fair Employment Housing Act. Although Plaintiff’s claims are certainly based on different facts, the Court disagrees that amendment should not be permitted here to assert those claims. Under the primary rights doctrine, there is at least a colorable argument that Plaintiff must assert claims of disability discrimination in this action if she wishes to obtain relief, or else risk her new claims being barred by the doctrine of res judicata. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 681-82.)

Defendants also argue that Plaintiff’s proposed first amended complaint is a sham pleading. Under the sham pleading doctrine, “[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradicts facts pleaded in the original complaint, or by suppressing facts which prove the pleaded facts false.” (Cantu v. Resolution Trust Corporation (1992) 4 Cal.App.4th 857, 877-878.) In such circumstances, “the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.) Defendants here do not point to a single allegation in the operative Complaint that is contradicted by the allegations offered in the proposed pleading, let alone that any of the new allegations reveal a plan to avoid a demurrer or other pleading insufficiency.

            Defendants next argue without evidence that Plaintiff’s new allegations will unfairly prejudice Defendants by forcing them to change their litigation strategy and to incur additional costs. Even if it accepted these contentions as true, the Court is not persuaded that those burdens would constitute unfair prejudice at this stage of the litigation. This case is less than one year old, trial has not yet been set, and no substantive motion practice has been conducted aside from the instant motion. Defendants have failed to demonstrate any prejudice that would warrant denial of leave to amend.

            Defendants also accuse Plaintiff and her counsel of manufacturing new evidence to harass and intimidate Defendants, claiming that the proposed first amended complaint is retaliation for Defendants’ refusal to accept Plaintiff’s settlement offers. These accusations are entirely inappropriate. Nothing in any of the correspondence offered by Defendants evidences anything other than a good-faith belief by Plaintiff and her counsel that she had grounds to assert additional causes of action, notwithstanding Defendants’ disagreement, and that, if the parties could not reach a settlement, amendment would be required to assert those claims. (See Declaration of Al Mohajerian Exhs. A-D.) Even if Plaintiff’s new claims lack merit—a contention the Court declines to address in the context of this motion—that would not constitute evidence of an improper motive by Plaintiff, much less the egregious accusation that Plaintiff forged evidence or is attempting to extort Defendants.

            Moreover, as an attorney licensed in the State of California, Defendants’ counsel has an ethical obligation not to assert a position in litigation without probable cause under Rule of Professional Conduct 3.1(a), and the Court sees nothing in the evidence presented that constitutes probable cause for accusations of criminal misconduct by Plaintiff and her counsel. (Cal. R. Prof. Conduct 3.1(a).)

            In summary, having rejected Defendants’ objections to the proposed pleading and the motion itself, the Court finds that Plaintiff should be granted leave to file a First Amended Complaint.

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CONCLUSION:

            Accordingly, Plaintiff’s Motion for Leave to File a First Amended Complaint is GRANTED.

            A stand-alone version of the First Amended Complaint shall be filed with the Court within 5 days of this Order, with Defendants’ answer or other response to be filed according to code. 

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  October 18, 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.