Judge: Upinder S. Kalra, Case: 21STCV09623, Date: 2023-09-18 Tentative Ruling
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Case Number: 21STCV09623 Hearing Date: November 22, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: November
22, 2023
CASE NAME: Jose Ayala v. Somatdary, Inc. d/b/a
Rapid Plumbing, et al.
CASE NO.: 21STCV09623
MOTION
FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
MOVING PARTY: Plaintiff
Jose Ayala
RESPONDING PARTY(S): None as of November 16, 2023
REQUESTED RELIEF:
1.
An
Order granting leave to file a Second Amended Complaint.
TENTATIVE RULING:
1.
Motion
for Leave to File a First Amended Complaint is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On March 11, 2021, Plaintiff Jose Ayala (“Plaintiff”) filed
a complaint against Defendants Somatdary, Inc., dba Rapid Plumbing, ADP Total Source FL XVI, Inc.,
ADP Total Source, Inc., and Abbas Pournahavandi (“Defendants.”) The complaint alleged 18 causes of action,
including various labor code violations, fraud, intentional infliction of
emotional distress, and negligent hiring and retention. The complaint alleges
that Plaintiff worked for Defendants from 2015 to 2019 as a technician. During
Plaintiff’s employment, they were not paid correctly, including failure to pay
overtime, failure to pay all wages entitled to, charging Plaintiff for business
expenses. Additionally, Plaintiff alleges that Defendants violated various
Labor Code sections by not having a commission plan for Plaintiff and requiring
Plaintiff to provide their own tools.
On April 30, 2021, Defendants ADP TotalSource FL XVI and
ADP TotalSource, Inc., filed a Demurrer.
On August 26, 2021, Defendant Abbas Pournahavandi filed an
Answer.
On August 26, 2021, Defendant Somatdary Inc., filed an
Answer.
On December 8, 2021, Defendants ADP TotalSource FL XVI and
ADP TotalSource, Inc., filed an Answer.
On March 14, 2023, Plaintiff filed a Motion for Leave to
File a First Amended Complaint, which the court GRANTED on June 22, 2023.
On October 19, 2023, Plaintiff filed the instant Motion for
Leave to File a Second Amended Complaint. Oppositions were due on or before November
8, 2023. No oppositions have been filed as of November 16, 2023.
LEGAL STANDARD:
California Code of Civil Procedure (CCP) section 473,
subdivision (a)(1) provides, in relevant part: “The court may, in furtherance
of justice, and on any terms as may be proper, allow a party to amend any
pleading or proceeding by adding or striking out the name of any party, or by
correcting a mistake in the name of a party, or a mistake in any other respect;
and may, upon like terms, enlarge the time for answer or demurrer.¿ The court
may likewise, 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; and may upon like terms allow an answer to be made after the time
limited by this code.”¿
“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.)¿ 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).)¿
Under California Rules of Court Rule, rule 3.1324,
subdivision (a), a motion to amend a pleading shall (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.¿¿
Under California Rule of Court, rule 3.1324, subdivision
(b), 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.¿
ANALYSIS:
Plaintiff argues that leave to amend should be granted because
Plaintiff is only seeking to add dollar amounts for the damages sought, not new
or additional factual allegations. Additionally, Plaintiff contends that he
needs to specifically allege these damages in order to proceed with obtaining
default for Defendant’s failure to participate in the litigation.
Plaintiff states that counsel discovered the facts
underlying this proposed amendment after the court granted Plaintiff’s Motion
to Deem RFAs admitted against Defendant on September 18, 2023. Plaintiff’s counsel contacted
Defendant’s general counsel to ask if they would stipulate to allow Plaintiff
leave to amend, but no response was given. Plaintiff argues that leave to amend
is proper as the proposed amendments are timely and meritorious. Additionally, there will be no prejudice.
Trial is set for February 2024, no depositions have occurred, and Defendants
have not produced any discovery.
Plaintiff
also states that they have complied with Rule 3.1324. They have included a copy
of the proposed amended complaint, provide which new additions are being made,
and where they are being made in the new pleading. Lastly, in the Butzen declaration, Counsel
states the effect of the amendment (provide as precise as possible numbers for
what Plaintiff believes the law entitled him for harm Defendants impacted on
him), why amendment is proper (it puts Defendants and the court on notice of
the amount of damages Plaintiff seeks, Plaintiff needs to specifically allege
these damages to proceed in this case and to obtain default judgment against
Defendant, and no prejudice to Defendant), when the facts were discovered, (after
the court granted Plaintiff’s Motion to Deem RFAs admitted on September 18,
2023), why amendment was not made earlier (Defendants were previously
participating in litigation but are now refusing to participate in litigation,
forcing Plaintiff to seek default.) (Dec. Butzen ¶¶ 19-22.)
The Court agrees with Plaintiff that there is good cause to
allow leave to amend. “It is the general rule that amendments to pleadings
should be liberally allowed.” (Simons v.
Kern County (1965) 234 Cal.App.2d 362, 367). Further, “And it is a rare
case in which ‘a court will be justified in refusing a party leave to amend his
pleadings so that he may properly present his case.” (Morgan v. Superior Court of Cal. In and For Los Angeles County
(1959) 172 Cal.App.2d 527, 530). “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 and where the refusal also results in a party being
deprived of the right to assert a meritorious cause of action or a meritorious
defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Cal. In and For
Los Angeles County (1959) 172 Cal.App.2d 527, 530.) Here, the new damages
allegations are based on the same circumstances, no discovery has occurred, and
trial is set for February 2024. This is the second amendment to the complaint
and Plaintiff attempted to stipulate to allow an amendment, but did not receive
a response. Moreover, Plaintiff has attached the proposed amended complaint,
and on page 7 of the Motion, indicates which paragraphs and lines will be
affected as to the new causes of action (9:28-10:12 / ¶ 35; 13:12-24 / ¶ 50;
18:14-16 / ¶ 75; 23:1-13 / ¶ 101; 25:22-26:7 / ¶114; 32:13-25 / ¶ 143;
36:18-37:2 / ¶ 162; 40:21-41:6 / ¶176; 43:6-18 / ¶188; 45:26-46:11 / ¶204;
47:21-48:6 / ¶215; 51:7-19 / ¶233; 54:17-55:1 / ¶ 251; 58:1-13 / ¶204;
47:21-48:6 / ¶215; 51:7-19 / ¶ 233; 54:17-55:1 / ¶ 251; 58:1-13 / ¶269;
60:20-61:5 / ¶277; 63:2-14 / ¶ 292; 65:25-66:9 / ¶304; 70:13-15 / ¶326; 72:7-19
/ ¶336; 77:7-19 / ¶356; 81:16-82:1 / ¶371; 95:2-14 / ¶435; 101:3-15 / ¶457;
106:8-20 / ¶476; 109:24-110:8 / ¶496; 113:12-24 / ¶ 515; 116:27-117:15 / ¶535).
Thus, Plaintiff has provided all the required information under Rule of Court,
Rule 3.1324.
Motion for Leave to File a First Amended Complaint is
GRANTED.
CONCLUSION:
For
the foregoing reasons, the Court decides the pending motion as follows:
Motion for Leave to File a First Amended Complaint is
GRANTED. The lodged amended complaint is deemed filed.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: November
22, 2023 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court