Judge: Yolanda Orozco, Case: 21STCV09227, Date: 2023-04-17 Tentative Ruling
Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.
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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.
Case Number: 21STCV09227 Hearing Date: April 17, 2023 Dept: 31
PROCEEDINGS: (1)
Motion for leave to amend to add named
REPRESENTATIVE
and file first amended complaint and
(2)
MOTION TO COMEL DEPOSITION OF pmq
MOVING PARTY:¿ Plaintiff Rod Linsangan
RESP.¿ PARTY:¿ Defendant Whelan Security of
California, Inc.
(1) Motion for leave to amend
to add named representative and file first amended complaint and
(2)
MOTION TO COMPEL DEPOSITION OF pmq
TENTATIVE RULING
(1)
Plaintiff’s
Motion for Leave to Amend to Add Named Representative is GRANTED.
(2) Plaintiff’s
Motion to Compel the Deposition of Defendant’s PMQ is GRANTED
Legal Standard
I.
Leave to Amend
Leave to amend is permitted under Code of Civil Procedure
section 473, subdivision (a) and section 576. California courts are required to
permit liberal amendment of pleadings in the interest of justice between the
parties to an action. (Dieckmann v. Superior Court (1985) 175
Cal.App.3d 345, 352.)¿ Generally, amendment must be permitted unless there is
unwarranted delay in requesting leave to amend or undue prejudice to the
opposing party. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359,
1377.) Even if a good amendment is proposed in proper form, unwarranted delay
in presenting it may – of itself—be a valid reason for denial. (Emerald Bay
Community Association v. Golden Eagle Ins. Corp. (2005) 130
Cal.App.4th 1078, 1097.)¿¿¿¿¿
¿¿¿¿
Under California Rules of
Court, rule 3.1324, 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. (Cal. Rules of Court, rule 3.1324(a).) A
separate supporting declaration specifying (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 reason why the request for
amendment was not made earlier must accompany the motion. (Id.,
rule 3.1324 subd. (b).)¿¿¿
II.
Motion to Compel Deposition of PMQ
Code
of Civil Procedure section 2025.450, section (a) provides:¿¿¿¿¿
¿¿¿¿
“If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a party, or a
person designated by an organization that is a party under Section 2025.230,
without having served a valid objection under Section 2025.410, fails to appear
for examination, or to proceed with it, or to produce for inspection any
document, electronically stored information, or tangible thing described in the
deposition notice, the party giving the notice may move for an order compelling
the deponent’s attendance and testimony, and the production for inspection of
any document, electronically stored information, or tangible thing described in
the deposition notice.”¿¿¿¿
¿
¿(Code
Civ. Proc., § 2025.450, subd. (a).)¿¿¿¿¿
¿¿¿¿
A
motion under Section 2025.450, subdivision (a), must set forth specific facts
showing good cause justifying the production of the requested documents in the
deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).) Good cause is
construed liberally and has been found where documents are necessary for trial
preparation. (See Associated Brewers Dist. Co. v. Superior Court
1967) 65 Cal.2d 583, 587.) The motion must also “be accompanied by a meet and
confer declaration under Section 2016.040, or, when the deponent fails to
attend the deposition and produce documents…by a declaration stating that the
petitioner has contacted the deponent to inquire about the nonappearance.”
(Code Civ. Proc., § 2025.450, subd. (b)(2).)¿¿¿¿
Meet and confer
the
meet and confer requirement has been met. (See Maywood Decl.)
DISCUSSION
I.
Plaintiff’s Motion for Leave to Amend
to Add Additional Named Representative
Plaintiff seeks leave to
file a First Amended Complaint that will:
1) Adds
Aneeta Carter, a current employee of one or more Defendants, as an additional
named plaintiff representative in this action and includes allegations to
support her standing under California Labor Code §§ 2699. (See Ex. A to Mayhood
Decl. at p. 3:3-5, ¶ 4; p. 6:1-12, ¶¶ 20-21.);
2) Adds
allegations to establish that Plaintiff Linsangan complied with the LWDA notice
requirement under California Labor Code § 2699. (See Ex. A to Mayhood Decl., at
p. 6:19-28, ¶¶ 18-19.);
3) Adds
Whelan Security of California Inc., Whelan Security Management Company Inc.,
and Whelan Security Co., who were properly named on April 30, 2021, by means of
Doe Amendments, for clarification purposes. (See Ex. A to Mayhood Decl., at p.
4:1-20, ¶¶ 7-10.);
4) Adds
a clarification that Plaintiff is informed and believes that Defendant
GardaWorld is a separate entity from WSCI, and not its legal and proper dba.
(See Ex. A to Mayhood Decl., at p. 3:21-23, ¶ 5.)
A copy of the proposed FAC
is attached as Exhibit A of the Declaration of Marissa A. Maywood, with
attached Exhibit B showing the redline changes from the original complaint to
the proposed FAC.
Whelan
Security of California, Inc. (“WSCI” or “Defendant”) asserts leave to amend should
be denied because the amendment would severely prejudice Defendants and the
amendment would be futile. Defendant asserts that adding Aneeta Carter
would fundamentally alter the lawsuit at the eleventh hour and greatly
prejudice Defendants.
First, nothing in Plaintiff’s proposed amendment suggests
that a new cause of action is being added that fundamentally alters the facts
on which this case is premised. Moreover, by Defendant’s own admission, the
case may end up in arbitration due to the arbitration agreements that both
Plaintiff and Carter are alleged to have signed. Generally, amendments must be
permitted unless there is an unwarranted delay in requesting leave to amend or
undue prejudice to the opposing party. (See Duchrow
v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) There is no evidence
that Plaintiff was dilatory or unduly delayed in bringing this Motion because
this action was stayed and no discovery had yet commenced. Any prejudice
Defendant may suffer is minimal.
Unlike the case Payton v. CSI Electrical
Contractors, Inc. (2018) 27 Cal.App.5th 832 which was four
years old, this case has been stayed for the past two years. (Id. At
847.) Moreover, Payton related to the denial of class certification
because the prosed class representative was not suitable and there were other
problems with the motion for class certification. Unlike A.N. v. County of
Los Angeles (2009) 171 Cal.App.4th 1058, here Plaintiff is not seeking to
make Doe amendments at the eve of trial.
Any prejudice that may result from granting
leave to amend can be mitigated by continuing the MSJ hearing or
requesting that the trial date be continued. Plaintiff argues that on May o4,
2022, the Evans court approved the settlement and issued an order determining
that Evans and this instant action were not related. (Maywood Supp.
Decl. ¶ 3, Ex. 3.) Therefore, Plaintiff does not concede that his claims prior
to May 04, 2022 are barred by the Evans settlement. Therefore, Defendant
can still proceed with its MSJ motion. Moreover, it is disingenuous of Defendant's
to oppose the motion on the grounds that further discovery is required when
Defendants admit they have yet to propound any discovery.
Plaintiff has a right to amend the complaint and Defendant
fails to cite any authority holding that the mere possibility an MSJ may become
moot justifies denying Plaintiff’s right to amend. (See Solit v. Tokai Bank, Ltd. New York
Branch (1999) 68 Cal.App.4th 1435, 1448
[“Generally, leave to amend must be liberally granted, provided there is no
statute of limitations concern, nor any prejudice to the opposing party, such
as delay in trial, loss of critical evidence, or added costs of
preparation.”].) Thus, there is no showing of undue prejudice.
Secondly—as to Defendant’s assertion that the amendment
would be futile due to the existence of an arbitration agreement—the motion is
not yet before Court and the Court has not had the opportunity to rule on the
merits of a motion to compel arbitration. It would be unreasonable to deny
Plaintiff’s motion on the basis that Defendant may prevail on a motion to
compel arbitration.
Since there is no showing
that Defendant will be unduly prejudiced by the amendments, the Motion is
GRANTED.
II.
Plaintiff’s Motion to Compel
Deposition of Defendant’s PMQ
Both parties
acknowledge that when the Court lifted the stay “to permit Plaintiff to take
limited discovery to oppose the Motion for Summary Judgment.” (Min. Or.
08/26/2022.)
Plaintiff now moves to
compel Defendant WSCI’s person
Most Qualified (“PMQ”) to appear for a deposition regarding six deposition
topics intended to ascertain whether the Judgment in Akim Evans v. Whelan
Security of California, Inc., et al. (Evans) (LASC Case No.
20STCV10973) preclude Plaintiff’s PAGA claims from March 26, 2020, to May 04,
2020.
In response to Plaintiff’s request for leave to amend,
Plaintiff’s counsel submitted a supplemental declaration informing the court
that “On May 4, 2022, the Evans court approved the settlement and
issued an order determining that the Evans matter and the present matter
are not related.” (Supp. Maywood Decl. ¶ 3, Ex. E.)
Therefore, Defendant fails
to show that the Evans settlement bars Plaintiff’s claims accruing on or
before May 04, 2022. The Court finds that Plaintiff has articulated good cause
to conduct a deposition of Defendant’s PMQ and that
six deposition topics are relevant to the pending motion for summary judgment.
The
motion is GRANTED.
Conclusion
(1)
Plaintiff’s Motion for Leave to Amend to Add Named
Representative is GRANTED.
(2) Plaintiff’s Motion to Compel the Deposition of Defendant’s
PMQ is GRANTED.
Moving party to give notice.