Case Number: BC717852 Hearing Date: February 28, 2020 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

miguel arellano,

Plaintiff,

vs.

davich u.s.a., inc., et al.,

Defendants.

Case No.:

BC 717852

Hearing Date:

February 28, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Background

Plaintiff Miguel Arellano (“Plaintiff”) filed this employment action on August 14, 2018 against Defendant Davich U.S.A., Inc. (“Defendant”).

Plaintiff now moves for leave to file a First Amended Complaint that adds Dickson Chen, OD, Inc. as a named defendant. Defendant opposes.

Discussion

Pursuant to Code of Civil Procedure section 473(a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. ((Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “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….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. ((Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. ((Ibid. .) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason why the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.1324(b).)

The Court finds that Plaintiff has complied with the procedural requirements of CRC 3.1324. Plaintiff has submitted a declaration from his counsel setting forth the basis for adding a new named defendant—essentially that during discovery, Plaintiff discovered that a separate entity was an owner of the business that employed Plaintiff and therefore should be held liable as a joint employer. (Gunther Decl., ¶¶ 13, 19-20.) Trial in this matter is currently set for August 26, 2020, so Plaintiff asserts that Defendant will not be prejudiced by the amendment.

Defendant argues that the amendment is futile because there is no legal basis for finding that the newly named defendant is an employer of Plaintiff. But the legal deficiency of the proposed amendment does not warrant denial of leave to amend. ((See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”].) Moreover, the Court notes that Defendant does not argue that it would be prejudiced by the amendment.

Conclusion

Based on the foregoing, Plaintiff’s motion for leave to file a First Amended Complaint is granted. The Court orders Plaintiff to file and serve the First Amended Complaint within 3 days of the date of this Order.

Plaintiff is ordered to give notice of this ruling.

DATED: February 28, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court