Judge: William D. Claster, Case: 22-01286519, Date: 2023-08-18 Tentative Ruling

1. Plaintiff Faustino Gonzalez Cabrera's Notice of Motion and Motion for Leave to File First Amended Complaint   ROA 81

2. Informal Discovery Conference

Plaintiff’s Motion for Leave to File a First Amended Complaint (FAC) is GRANTED subject to the Court receiving a satisfactory answer to the question posed at the end of this tentative ruling. Plaintiff is to file and serve the FAC by September 1, 2023.

1.    Evidentiary Matters

Defendant’s request for judicial notice is GRANTED. On its own motion, the Court will take judicial notice of its dismissal order in Plaintiff’s related class action, i.e., Cabrera v. Premier Contractors, Inc., 22-01268395. (Evid. Code § 455(a).)

2.    Background

Currently this is a PAGA-only matter involving the non-exempt employees of Defendant, a construction company that employed Plaintiff Cabrera as a drywall installer. Per the operative complaint (ROA 2), the predicate Labor Code violations are:

1.    Minimum wage

2.    Overtime

3.    Meal breaks

4.    Rest breaks

5.    Waiting time

6.    Biweekly pay

7.    Wage statements

8.    Recordkeeping

9.    Reimbursement

This matter was preceded by a related class action, Cabrera v. Premier Contractors, Inc., 22-01268395. The operative complaint in that earlier class action, which was brought on behalf of all non-exempt employees and included the same alleged Labor Code violations, was voluntarily dismissed in exchange for a $5,000 settlement of Cabrera’s individual claims. (ROA 45.) Per the Court’s order in the class action (ROA 53), both the individual and class claims were dismissed without prejudice.

3.    Legal Authority

Motions for leave to amend a pleading are directed to the sound discretion of the Court. (CCP §§ 473(a)(1), 576.) California courts allow great liberality at all stages of the proceeding in permitting the amendment of pleadings to resolve cases on their merits. (IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal. App. 3d 451, 461.) Because the policy favoring amendment is so strong, “[i]t is a rare case in which denial of leave to amend can be justified.  Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but under substantive law, no liability exists and no amendment would change the result.” (Howard v. County of San Diego (2010) 184 Cal. App. 4th 1422, 1428.)

Courts may permit amendments at any stage in the proceedings, up to and including trial, so long there is no prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Delay in requesting leave to amend will not support denial of leave to amend unless the delay caused prejudice. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558.) Prejudice exists where, for example, the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471.)

Procedurally, a motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or amended pleading; (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, by page, paragraph, and line number, the additional allegations are located. (CRC 3.1324(a).) Also, a separate declaration 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(b).)

4.    Merits

Defendant first argues Plaintiff’s moving papers fail to satisfy CRC § 3.1324(b). (Opp. at 5-8.) Defendant’s arguments are unpersuasive. While Plaintiff’s declaration does not state specifically when the facts giving rise to the allegations were first discovered, the filing of the previous class action complaint demonstrates that Plaintiff has been aware of the facts since at least 2022. The remainder of the declaration and the attached exhibits are sufficient to show substantial compliance with § 3.1324.

Second, Defendant argues that Plaintiff’s motion is a disguised motion to intervene and the Court should thus analyze it under CCP § 387. This argument lacks merit. CCP § 387 pertains to situations where a non-party seeks to participate in a lawsuit. By way of contrast, CCP § 473(a) expressly governs where a party seeks to amend “by adding or striking out the name of any party.” Here, since a pre-existing party—Plaintiff Cabrera-- seeks leave to voluntarily add an individual as a party, CCP § 387 does not apply.

Third, Defendant argues Plaintiff has not pleaded exhaustion (via the LWDA) as to proposed Plaintiff Garcia’s PAGA claim. The Court finds this argument premature.

The general rule is that the court need not decide the merits of the added claims in deciding whether or not to grant leave to amend. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045; Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 6:644 ["Ordinarily, the judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. Grounds for demurrer or motion to strike are premature. After leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading"].)

Rather than considering the sufficiency of the proposed new claims, the focus of the Court’s inquiry here is on whether prejudice would result from the proposed amendment. Here, Defendant has not demonstrated prejudice. There is no trial date and discovery has just begun. The existence of similar class actions against Defendant can be dealt with through other procedures, e.g., consolidation, and does not warrant denial of leave to amend.

That being said, Plaintiff must explain why it is necessary to file a third class action when the two pending class actions appear to encompass the Labor Code violations at issue in the FAC. Among other things, Plaintiff needs to justify the following statement from page 6 of its motion in light of these other lawsuits: “The proposed amendment is both necessary and proper in order protect the interests of the potential class. The potential class will undeniably suffer great prejudice if the Court denies Plaintiff’s present request for leave to amend to add a class representative, along with class allegations. If that were to happen, thousands of potential class members would be prevented from recovering wages owed to them due to Defendant’s systematic wage and hour violations.”