Case Number: BC505676 Hearing Date: May 12, 2014 Dept: 32

CASE NAME: Alejandra Chavez v Bimbo
CASE NO.: BC505676
HEARING DATE: 05/12/14
DEPARTMENT: 32
CALENDAR NO.: 3
TRIAL DATE: 7/29/14
SUBJECT: Motion for Leave to File FAC and to Continue Trial
MOVING PARTY: Plaintiff Chavez
RESP. PARTY: Defendant Bimbo Bakeries and Alexander Pereira

TENTATIVE RULING

The Motion for Leave to Amend is GRANTED in Part and DENIED in Part. It is granted only as to allow Plaintiff to file the FAC for the new fifth and sixth causes of action. It is denied as to Plaintiff’s request to replace the first cause of action with a common law sexual harassment claim and as to Plaintiff’s request to add the new seventh cause of action.

Plaintiff’s Motion to Continue Trial is GRANTED, length of continuance to be discussed at the hearing.

ANALYSIS

Defendants’ Request for Judicial Notice filed with the Opposition

(1) GRANTED

Defendants’ Evidentiary Objections to Declaration of Tom Moser

(1) OVERRULED

Plaintiff’s Motion for Leave

When ruling on a motion for leave to amend a pleading, the trial court has “wide discretion” and the ruling will be upheld “unless a manifest or gross abuse of discretion” is shown. (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) Leave to amend at any time is liberally allowed in the interests of justice and in the absence of prejudice to another party, even up to the time of trial. (Code Civ. Proc., §§ 473(a)(1) & 576; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Denial of leave is rarely justified. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) ¶ 6:639.) However, where there is “probable prejudice” to an opposing party, the amendment appears to be a sham amendment, or is otherwise legally defective and unable to be cured by amendment, the court has discretion to deny leave. (Id. at ¶¶ 6:640-662; Magpali, supra, 48 Cal.App.4th at p. 487.) The type of prejudice that should concern the court is prejudice beyond that which occurs when having to cope with a potential new theory of recovery revealed during discovery. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486.) The court looks instead for delays in the trial date, loss of critical evidence, extensive increase in the costs of preparation and other similar circumstances that create prejudice to another party. (Weil & Brown, supra, at ¶¶ 6:655-662.)

Cal. Rules of Court, rule 3.1324 provides further procedural requirements which the amending party must meet. The motion to amend must include a copy of the proposed amended pleading and state which allegations are proposed to be added and which are proposed to be deleted. (Cal. Rules of Court, rule 3.1324(a).) The motion must also be accompanied by a separate 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 reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324(b).)

Plaintiff’s motion complies with these procedural requirements. It is accompanied by a copy of the Proposed First Amended Complaint and a Declaration of Tom Moser. The declaration states that the amendments are necessary because Counsel failed to file a complaint with the DFEH in order to support the first cause of action for the FEHA violation (sexual harassment). This defect was discovered in September 2013 when the two parties’ counsels were in discussion (Moser Decl ¶1). Counsel further provides that the additional fifth cause of action for sexual battery under Civil Code §1708.5, a sixth cause of action for violation of Civil Code Section 51.7 and §52 (violence and intimidation by threat of violence), and a seventh cause of action for violation of Civil Code §51.9 and §52 (sexual harassment) are necessary in that Counsel believed the first cause of action for FEHA sexual harassment subsumed these three new causes of action.

First Cause of Action for violation of the California Constitution, Art 1, §8 (Sexual Harassment) and Seventh Cause of Action for Violation of CC §51.9 and §52

Defendant contends that the first and seventh causes of action for sexual harassment in violation of the Constitution and violation of CC §51.9 and §52 are insufficiently plead because there is no cause of action for common law sexual harassment under the Constitution’s §8 and there are no facts to show wrongful termination. Plaintiff is still employed with Defendant.

Ordinarily, the judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. However, the court may deny leave to amend where a proposed amendment fails to state a valid cause of action or defense. California Casualty General Ins. Co. v. Sup.Ct. (Gorgei) (1985) 173 Cal App 3d 274, 280–281 (disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal 4th 390, 407. Such denial is “most appropriate” where the pleading is deficient as a matter of law and the defect could not be cured by further appropriate amendment. California Casualty General Ins. Co. v. Sup.Ct. (Gorgei), supra, 173 Cal App 3d at 281; Foxborough v. Van Atta (1994) 26 Cal App 4th 217, 230—proposed amendment barred by statute of limitations and no basis for “relation back”. Weil & Brown, supra, at ¶¶ 6:644-646.)

California Constitution, Article I, Section 8 provides: “A person may not be disqualified from entering or pursuing a business, profession, vocation or employment because of sex, race, creed, color or national or ethnic origin.” Rojo v. Kliger (1990) 52 Cal 3d 65, 89—Tameny claim based on gender discrimination and sexual harassment; Phillips v. St. Mary Regional Med. Ctr. (2002) 96 Cal App 4th 218, 230–233—claim based on race and sex discrimination; Badih v. Myers (1995) 36 CA4th 1289—claim based on pregnancy discrimination. Based upon this section of the California Constitution, Plaintiff attempts to allege a common law cause of action for sexual harassment. However, this very claim was addressed in Medix Ambulance Service, Inc. v Sup. Ct. (2002) 97 Cal App 4th 109, 118-119. That court concluded that a cause of action for sexual harassment is a creature of statute (FEHA) and there is no common law tort for sexual harassment. While a plaintiff may rely on the public policy embodied in Article I Section 8 of the California Constitution as a ground to assert wrongful termination in violation of public policy, Plaintiff has not made that claim here.

Because a cause of action for common law sexual harassment does not exist, and that defect could not be cured as a matter of law, the motion to amend the first cause of action is DENIED.

In order to properly plead the seventh cause of action for violation of CC §§51.9 & 52, Plaintiff must plead the existence of a business, service or professional relationship between Plaintiff and defendant as set forth in 51.9. An employer-employee relationship is not within the scope of Section 51.9. CC §51.9 applies to sexual harassment in certain business relationships outside of employment. Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1487. Because the only relationship alleged in the FAC involves an employee-employer relationship and there is no factual allegation of any “qualifying business relationship”, the seventh cause of action is defectively pled as a matter of law, and there is no possibility that the defect can be cured. The Motion to add a seventh cause of action for Violation of CC §§51.9 & 52 is DENIED.

Fifth Cause of Action for CC §1708.5 (Sexual Battery) & Sixth Cause of Action for CC §51.7 & §52 (Intimidation)

Defendant also argues that the new fifth cause of action for sexual battery CC §1708.5 and the sixth cause of action for intimidation per CC §51.7 & §52 are duplicative of each other and the original second cause of action for assault and battery and the third cause of action for Penal C §243.4 violation (sexual abuse).

A demurrer may be sustained as to a claim that duplicates another. Holcomb v. Wells Fargo Bank, NA (2007) 155 Cal.App.4th 490, However, if one cause of action of a complaint, restating duplicative causes of action, is good as against a general demurrer, then all of them will stand. Tracfone Wireless, Inc. v. L. A. County (2008) 163 Cal.App.4th 1359, 1368.

While there is overlap in the required elements for the second cause of action for assault and battery, third cause of action for violation of Penal Code §243.4 (sexual battery), fifth cause of action for violation of CC §1708.5 (sexual battery), and sixth cause of action for violation of Civil Code §51.7 (“Ralph Act”), the elements are not identical. The fifth and sixth causes of action are properly pled. Absent prejudice to the Defendants by amendment, the proposed amendment to add these causes of action is proper.

Prejudice

The Court does not consider Defendants’ prejudice argument as it relates to amendment of the first cause of action, as the Court has denied leave to amend with respect to that claim. Defendants have not made a convincing argument regarding prejudice with respect to adding the fifth and sixth causes of action. Those claims are based on the same facts alleged in the original complaint, and Defendants have not shown how these additional legal theories would give rise to a need for expanded discovery, increase the costs of preparation, result in the loss of critical evidence or other similar circumstances. The type of prejudice that should concern the court is prejudice beyond that which occurs when having to cope with a potential new theory of recovery revealed during discovery. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486.)

Defendants argue that public policy should preclude Plaintiff from amending the complaint to circumvent the administrative exhaustion requirements under FEHA. Defendants present no authority that a Plaintiff should be precluded from asserting proper claims under the Civil Code when that Plaintiff could also have asserted claims under FEHA but either failed to do so, or failed to comply with the FEHA imposed administrative exhaustion requirement. The statutory schemes are separate.

The only potential prejudice Defendants is the continuance of the trial date. Because the new causes of action are based on facts pled in the original complaint, any trial continuance would be minimal. The Court will discuss the issue with the parties at the hearing.

THEREFORE, the Motion for Leave to Amend is GRANTED in Part and DENIED in Part. It is granted only as to allow Plaintiff to file a FAC adding the new fifth and sixth causes of action. It is denied as to Plaintiff’s request to replace the first cause of action with a common law sexual harassment claim and as to Plaintiff’s request to add the new seventh cause of action