Moving Party: Plaintiff Jordan Shannon

Resp. Party: Defendant Kahuna Restaurant Group LLC dba Fiesta Cantina

Plaintiff’s motion for leave to file a first amended complaint is DENIED.

BACKGROUND:

Plaintiff commenced this action on October 17, 2012, against defendants for: (1) discrimination (FEHA); (2) retaliation (FEHA); (3) failure to prevent discrimination and harassment (FEHA); (4) intentional infliction of emotional distress; (5) negligence; (6) negligent hiring; and (7) wrongful termination. Plaintiff alleges he was subjected to discrimination and harassment while working at defendant’s establishment.

ANALYSIS:

Procedural analysis

Under California Rules of Court rule 3.1324(a):

(a) 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.

Subdivision (b) of rule 3.1324 requires the motion be accompanied by a separate declaration, specifying: (1) the amendment’s effect, (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.

Plaintiff provides a proposed first amended complaint (“FAC”). Plaintiff highlights the proposed amendments in the FAC.

Plaintiffs provide a declaration. The declaration states that plaintiff’s previous counsel failed to name Michael Bazera as a defendant. (Krupnick Decl., ¶ 4.) The declaration otherwise fails to describe the amendment’s effect, fails to state why the amendment is necessary and proper, fails to state when all facts giving rise to the amendments were discovered, and fails to explain why the request to amend was not made sooner. Therefore, the motion is not procedurally proper.

Substantive analysis

California Code of Civil Procedure section 473, subd. (a)(1) states: “The court may . . . , in its discretion, . . . allow, upon any terms as may be just, an amendment to any pleading or proceeding.” Although granting the motion is entirely within the Court’s discretion, denial is rarely justified:

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. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.)

Defendant challenges the sufficiency of the allegations in the proposed FAC, noting that, inter alia, the proposed Eighth Cause of Action would be pre-empted by Workers Compensation. The Court declines to decide on the sufficiency of the allegations at this time. The Court is “bound to apply a policy of great liberality in permitting amendments to the complaint ‘at any stage of the proceedings, up to and including trial,’ absent prejudice to the adverse party.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 6:652 [quoting Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761][emphasis in original].) A court ordinarily will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend, and grounds for demurrer or motion to strike are premature. (Id., ¶ 6:644.) To the extent that the allegations in the proposed FAC are insufficient or without merit, defendants may challenge them with a demurrer.. (See Atkinson v. Elk Corp. (2006) 109 Cal.App.4th 739, 760 [”the better course of action would have been to allow . . . [plaintiffs] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.”].)

A court can deny leave to amend after long, inexcusable delay, where there is cognizable prejudice, such as discovery needed, trial delay, critical evidence lost, or added preparation expense. (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Some courts have found that unreasonable delay in making a motion to amend a complaint alone is sufficient grounds to exercise court discretion to deny leave to amend, even absent any prejudice. (See Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613; Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940.)

Because the declaration included with the motion fails to comply with rule 3.1324, it is difficult for the court to determine if plaintiff unreasonably delayed in seeking to amend the complaint. The court notes, however:

· Counsel blames the failure to include Bazera as a defendant on plaintiff’s previous attorneys. He states in his declaration this is “a mistake that I am now in a position to correct now that [the previous attorneys are] no longer associated with this case.” (Krupnick Declaration, ¶ 4.) However, the previous attorneys substituted out of the case prior to Feb. 18, 2013 – well over one year ago.

· Plaintiff states that “Defendants were [put] on notice [of this cause of action] at the time of [Shannon’s] deposition.” (MPA, p. 4:28.) Shannon’s deposition was taken on Oct. 18, 2013, so plaintiff has been aware of these issues for at least 6 months.

The court finds this to be unreasonable delay.

Defendant argues it has been prejudiced by the delay because it will not have time to file a demurrer or motion for summary judgment attacking the new cause of action. (See Bonoli Decl., ¶ 3.) Moreover, the addition of a cause of action for unsanitary/hazardous working conditions could delay the trial in this matter because new discovery will be necessary to address the new claims. (See ibid.)

This case was filed in October 2012. Trial is set for exactly one month from today’s hearing.

Plaintiff’s motion for leave to file a first amended complaint is DENIED.