Case Number: 19CMCV00049 Hearing Date: February 20, 2020 Dept: A

# 9. Tommy Gay v. Diamond Mattress Company, Inc., et al.

Case No.: 19CMCV00049

Matter on calendar for: Motion for Leave to File FAC

Tentative ruling:

Background

This is a wrongful termination and discrimination action. Plaintiff Tommy Gay alleges violations of the Fair Employment and Housing Act (“FEHA”) and the labor code. Defendants Diamond Mattress Company, Inc., and JobSource Carson, Inc., were Plaintiff’s employer. Defendants Arturo Perez, Martin Romero, and Javier Gomez were Plaintiff’s supervisors.

The Complaint alleges the following causes of action:

Discrimination in violation of FEHA,

Retaliation in violation of FEHA,

Hostile Work Environment in violation of FEHA,

Failure to Prevent Discrimination, Harassment, or Retaliation in violation of FEHA,

Failure to Pay Wages,

Wrongful Termination/Adverse Employment Action in violation of Public Policy,

Negligent Hiring and Retention,

Intentional Infliction of Emotional Distress,

Violation of Business and Profession Code § 17200, et seq.,

Retaliation in violation of Labor Code § 1102.5

The Court granted Defendants’ motions to compel arbitration and to stay the action. Plaintiff now moves to amend the Complaint to remove the arbitrable causes of action. Defendant JobSource opposes the motion.

For the reasons set forth below, the Court continues the hearing.

Standard

Code of Civil Procedure §§ 473(a)(1) and 576 provide courts with the authority to allow the amendment of pleadings upon a showing of good cause and the absence of prejudice. California Rules of Court, Rule 3.1324(b) requires that Plaintiff prepare a declaration specifying (i) the effect of the amendment, (ii) why the amendment is necessary, (iii) when the facts giving rise to the amended allegations were discovered, and (iv) why the request for amendment was not made earlier.

In ruling on a motion for leave to file a cross-complaint, the Court generally considers whether the non-moving parties would face prejudice. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486–488.) Examples of prejudice include: delay in trial date, increased costs of preparation, increased burden of discovery, etc. (Id.) “If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.” (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) California judicial policy generally favors permitting amendment to pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.)

Denial of leave to amend is appropriate where (1) the party seeking the amendment has been dilatory; and (2) the delay has prejudiced the opposing party. (Hirsa v. Superior Court (1981) 119 Cal.App.3rd 486, 490.)

Analysis

Plaintiff’s proposed First Amended Complaint (“FAC”) dismisses, without prejudice, his arbitrable common law claims while maintaining the non-arbitrable statutory FEHA and Labor Code causes of action. Although an opposition has been filed, it lacks legal authority showing that amendment, under these circumstances, is improper. At the same time, Plaintiff’s motion also lacks authority supporting the use of an amendment to circumvent this Court’s previous order.

Additionally, the motion fails to comply with the procedural requirements of California Rules of Court, Rule 3.1324(a) by specifying the proposed changes by page, paragraph, and line number. This can be remedied by Plaintiff submitting a redline copy of the FAC with deletions shown via strike-though text and additions underlined.

As to whether amendment is proper, the Court’s own research revealed the case of Cardiff Equities, Inc. v. Superior Court (2008) 166 Cal.App.4th 1541. The plaintiff in Cardiff voluntarily dismissed their initial action after a stay was granted, and then filed a new lawsuit that lacked the arbitrable allegations. (Id. at 1544–1547.) The court found the procedure proper based on the plaintiff’s right to dismiss their own action, but this is a different procedure than is being utilized in the instant case, which involves leave to amend. (Id. at 1552.)

The Court finds that a continuance is in order. Plaintiff is to submit an additional declaration complying with Rule 3.1324. Plaintiff, and any Defendant wishing to be heard, is to also file a short supplemental brief (5 pages max), addressing whether Cardiff applies in this circumstance or whether Plaintiff must dismiss his action and refile because this action has been stayed.

Ruling

The Court finds that a continuance is in order. Plaintiff is to submit an additional declaration complying with Rule 3.1324. Plaintiff, and any Defendant wishing to be heard, is to also file a short supplemental brief (5 pages max), addressing whether Cardiff applies in this circumstance or whether Plaintiff must dismiss his action and refile because this action has been stayed.

The hearing is continued to March 5, 2020. Supplemental briefs are due February 28, 2020.