Case Number: SC129247 Hearing Date: February 06, 2020 Dept: P

Tentative Ruling

Boris Eckey v. Hasten Beds, Inc. Case No. SC129247

Hearing Date: February 6, 2020

Plaintiff’s Motion to quash deposition subpoena

Plaintiff alleges wrongfully termination. Defendants discovered plaintiff was previously terminated due to suspicion of theft and have issued deposition subpoenas to the LAPD and Sferra Fine Linens, LLC related to the criminal charges, which were dismissed.

Plaintiff moves to quash, alleging the subpoenas seek irrelevant information and violate his privacy rights. Plaintiff argues the theft charges from 2013 are irrelevant to whether he misappropriated information from Damon Capital in 2017, and records of an arrest not resulting in a conviction cannot be used to impeach a witness’ credibility. While this evidence may not be admissible at trial, that is not the test for whether documents are discoverable. Discovery is broader than admissibility at trial.

Defendants argue the documents could prove that, during the hiring process, plaintiff made false representations regarding his prior conduct and reputation in the industry and that the evidence is relevant to its after-acquired evidence and unclean hands affirmative defenses, since if they knew plaintiff had been fired from his previous job for theft, they would have immediately terminated him. Plaintiff is suing for wrongful termination; the documents requested may lead to the discovery of admissible evidence. DENIED. A protective order, however, may be appropriate to address the privacy concerns.

Defendants’ Motion for Leave to File Cross-Complaint and Plaintiff’s Motion for Leave to File First Amended Complaint

Defendants seek leave to file a cross-complaint, alleging plaintiff stole confidential and proprietary materials. Plaintiff seeks leave to file an amended complaint, adding new causes of action based on defendants’ alleged failure to pay his commission.

Cross-Complaint

Under California’s compulsory cross-complaint statute, “a party against whom a complaint is filed and served” must allege “any related cause of action” against the plaintiff in a cross-complaint or lose the right to assert the related cause of action later. Cal. Code of Civ. Proc. §426(a). A related cause of action is one “which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” Cal. Code of Civ. Proc. §426.10(c). The statute is to be given a liberal construction in order to effectuate its purpose. Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 959. If a cross-claim is compulsory, a motion to file a cross-complaint must be granted unless bad faith of the moving party is demonstrated. Negligence or bad judgment on the part of the moving party, in the absence of a wrongful motive, is an insufficient basis to deny a motion to file a compulsory cross-complaint. Silver Orgs. v. Frank (1990) 217 Cal.App.3d 94, 98-99.

Defendants argue the proposed cross-complaint is compulsory under Code of Civ. Proc. §426. The court agrees, since the cross-complaint arises out of the same series of transactions as the underlying case.

Plaintiff argues defendants have known plaintiff possessed the allegedly proprietary information since May 2017 but waited before filing the instant motion. Opposition at pg. 3. Defendants argue they did not discover the full extent of the confidential information plaintiff took until July 2019. Defendants provide adequate explanation for the delay, and plaintiff has failed to demonstrate they acted in bad faith. The motion cannot be denied in the absence of bad faith. GRANTED.

Amended Complaint

A court may allow a party to amend any pleading on any terms as may be proper. Cal. Code of Civ. Proc. §§473(a). Leave to amend is to be liberally granted. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489. Leave to amend can be denied if the adverse party can show adverse prejudice. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. Unwarranted delay may also be a valid reason for denying leave to amend. Huff v. Wilkins (2006) 138 Cal.App.4th 732, 765.

Plaintiff seeks to amend to allege a variety of labor code violations, breach of contract, and unfair business practices based on defendants’ alleged failure to pay earned commissions. Defendants argue leave should be denied because the proposed causes of action are outside the statute of limitations.

A court will ordinarily deem a later-filed pleading to have been filed at the same time as an earlier complaint if the amended complaint alleges the same general set of facts, refers to the same injuries and same instrumentality as alleged in the original complaint. Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.4th 542, 548.

The original complaint alleges defendants failed to pay commissions and bonuses. Complaint at ¶15. As failure to pay commissions is the basis of the amendments, they relate back to the initial complaint and are not time-barred.

The fact that the original complaint explicitly alleges defendants’ failure to pay commissions however, shows plaintiff has been aware of the facts underlying his proposed amendment since May 2018. Plaintiff’s explanation he was “deceived” by a disingenuous document production is unavailing in light of the fact that he has been aware of the conduct underlying the proposed new causes of action for almost two years. The delay in seeking leave to amend is unwarranted. Additionally, defendants will suffer prejudice if leave to amend is granted, since trial is scheduled for March 23, 2020, and discovery has closed. Motion DENIED.