2015-00179844-CU-OE

Darnetta Lawson vs. MV Transportation, Inc.

Nature of Proceeding: Motion to File Amended Complaint

Filed By: Asbill, Natalia D.

** If any party requests oral argument, then the hearing will take place at 9:00 AM in this department on Wednesday, March 14, 2018 . If this date is inconvenient for the parties, they shall meet and confer regarding a mutually convenient date and call the clerk in Department 54 by no later than 4:00 p.m on Monday, March 12, 2018 to notify the clerk of the new date. Any request for oral argument must still be made Monday, March 12, 2018, 4:00 p.m. (See Local Rule 1.06.) **

Plaintiff Darnette Lawson’s motion for leave to file amended complaint is ruled upon as follows.

This action arises out of Plaintiff’s employment as a dispatcher with defendant MV Transportation, Inc. (“MV”), which contracted with defendant City of Elk Grove – Department of Public Works/Transit System (“the City”). Plaintiff also names her general manager, Terence Thompson (“Thompson”) as a defendant (together, “Defendants”). Plaintiff alleges inter alia claims for sexual harassment, gender discrimination, retaliation, failure to prevent, constructive termination and intentional infliction of emotional distress, seeking monetary damages as well as both injunctive and declaratory relief.

Plaintiff seeks leave to amend to add an additional cause of action against Thompson

for Violation of Penal Code §632 – Unauthorized Recording.

Trial was initially scheduled for 3/19/2018. Defendants moved to continue trial, which was granted. Trial is now scheduled for 6/25/2018. The discovery deadlines were not extended along with the new trial date.

According to Plaintiff’s counsel, she first learned of the two recordings in September 2017 when Defendants’ counsel produced them to her. (Declaration of Natalia Asbill,

¶ 9.) Defendants’ counsel indicated that the two recordings were of conversations between Plaintiff and Thompson. (Id.) On October 10, 2017, Plaintiff propounded discovery on the recordings. Plaintiff’s counsel states that she did not ascertain the full nature of the recording until after MV responded to written discovery in November 2017 and Thompson was deposed on December 19, 2017. (Id. ¶ 12.) On December 26, 2017, Plaintiff filed a motion for leave to amend the complaint. The Court denied the motion because: (1) the attorney’s declaration was not signed under penalty of perjury in conformance with CCP §2015.5, and (2) Defendants had a pending motion for summary judgment. Plaintiff filed the instant motion on February 13, 2018.

Plaintiff claims that the amendments will not prejudice Defendants because trial is three months away, and Defendants could have, but did not, propound discovery on the issue.

Defendants oppose, arguing that Plaintiff delayed filing seeking amendment. They further argue that they will be prejudiced because discovery is closed, and they will not have sufficient time to complete discovery before trial (Plaintiff’s counsel is out of the country May 7-25.) They did not propound discovery on the issue because Plaintiff was not asserting a cause of action for Violation of Penal Code §632. Defendants lastly contend that the new cause of action is deficient as a matter of law because the evidence shows that Thompson asked Plaintiff for her permission to record (which was granted) and that the conversations were not private.

California courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others. Indeed, it is a rare case in which “a court will be justified in refusing a party leave to amend his or her pleading so that he or she may properly present his or her case. Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. (Board of Trustees v. Superior Court (2007) 149 Cal. App. 4th 1154, 1163.)

The Court concludes that Defendants have shown prejudice by allowing the amendment of the complaint. Discovery is closed. Discovery will need to be re-opened in order for additional discovery to be taken, and trial will most likely need to be continued again. Although in reply, Plaintiff states she is willing to re-open discovery and continue the trial, the Court is not persuaded such concessions alleviate

the prejudice to Defendants, especially given Plaintiff’s delay in seeking leave to amend.

Given the foregoing, the motion for leave to amend is DENIED.