Case Number: BC555803 Hearing Date: August 04, 2015 Dept: 78
Superior Court of California
County of Los Angeles
Department 78

MARTHA REYES,
Plaintiff,
v.
DELTA TAU DATA SYSTEMS, INC., et al.,
Defendants. Case No.: BC555803
Hearing Date: Tuesday August 4, 2015

[TENTATIVE] RULING RE:
Plaintiff Martha Reyes’ Motion for an Order Granting Leave to File a First Amended Complaint.

Plaintiff Martha Reyes’ Motion for an Order Granting Leave to File a First Amended Complaint is GRANTED.

FACTUAL BACKGROUND

This is a wrongful termination, discrimination, harassment, and retaliation action filed by Plaintiff Martha Reyes (“Reyes”) against Defendants Delta Tau Data Systems, Inc. (“Delta Tau”), Robert Nakhshekarian, and Elia Olea’s (collectively, “Delta Tau Defendants”). Reyes alleges that she was a witness for the plaintiff in a previous lawsuit against defendant Delta Tau Data Systems, Inc. for work-related permanent physical and mental injuries, caused by unsafe and unhealthy work conditions, including a hostile work environmental resulting from management’s racial harassment in the workplace. (Complaint ¶ 1.) The Complaint alleges that the Delta Tau Defendants retaliated against Reyes because she participated in assisting, testifying, agreeing to testify, and participating in the investigation of the prior lawsuit (the “Leiva Lawsuit.”) (Complaint ¶ 1.)

The Complaint alleges as follows. Reyes was hired by Delta Tau on January 17, 2007 as an electronics assembly Machine Operator. (Complaint ¶ 4.) Reyes coworker, Yensi Leiva (“Leiva”) injured her lower back at work, and was allegedly subject to racial harassment by defendant Elia Olea (“Olea”) because she was of El Salvadorian national origin. (Complaint ¶ 7.) The complaint also alleges that Leiva’s injuries were recognized as a “physical disability,” and that racial harassment caused her emotional distress that was recognized as a “mental disability.” (Complaint ¶ 8.) On January 31, 2014, at her deposition, Leiva identified Reyes as a witness for her lawsuit, although she alleges that she only reluctantly revealed Reyes’ name during the deposition. (Complaint ¶ 14.) Reyes alleges that in April 2014, Reyes was called into Olea’s office and spoke with somebody she believed to have been Delta Tau’s attorney or an agent of Delta Tau, who asked her thirteen questions regarding the Leiva Lawsuit. (Complaint ¶ 20.) The complaint alleges this conversation was the “protected activity” for which Reyes was later fired. (Complaint ¶22.)

On April 28, 2014, Reyes requested vacation days off. Delta Tau never responded to this request, allegedly because Delta Tau had already decided to fire her. (Complaint ¶ 19.) On May 9, 2014, Reyes was fired, presumably as part of layoffs due to slow business. (Complaint ¶ 22.) Reyes alleges this layoff was a pretext to fire her for participating in the Leiva Lawsuit. (Complaint ¶ 22.) The complaint alleges that soon after she was “layed off,” Delta Tau hired new employees, supporting her contention that the layoff was mere pretext. (Complaint ¶ 30.)

On May 10, 2014, the day after she was fired, Delta Tau contacted Reyes again and questioned her about Leiva. (Complaint ¶ 25.)

PROCEDURAL HISTORY

The complaint was filed on August 25, 2014, stating ten causes of action:

1. WRONGFUL TERMINATION, VIOLATION OF CALIFORNIA PUBLIC POLICY, FEHA AND GOVERNMENT CODE § 12940(h), ET SEQ., RETALIATION FOR PARTICIPATION IN PROTECTED ACTIVITY;
2. WRONGFUL TERMINATION, VIOLATION OF CALIFORNIA PUBLIC POLICY, FEHA AND GOVERNMENT CODE § 12940(a) AND 12926(m) ASSOCIATIONAL DISCRIMINATION;
3. WRONGFUL TERMINATION, VIOLATION OF CALIFORNIA PUBLIC POLICY, FEHA AND LABOR CODE § 232.5(a), (c), ET SEQ., UNLAWFUL EMPLOYER RESTRAINT ON DISCLOSING WORKPLACE DISCUSSIONS;
4. WRONGFUL TERMINATION, VIOLATION OF CALIFORNIA PUBLIC POLICY AND LABOR CODE §132a(3), ET SEQ., RETALIATION FOR PARTICIPATION IN PROTECTED ACTIVITY
5. WRONGFUL TERMINATION, VIOLATION OF CALIFORNIA PUBLIC POLICY AND CALIFORNIA CONSTITUTION, ARTICLE XIV, SECTION 4, ET SEQ., RETALIATION FOR PARTICIPATION IN WORKERS’ COMPENSATION PRO-CEEDINGS;
6. WRONGFUL TERMINATION, VIOLATION OF CALIFORNIA PUBLIC POLICY AND LABOR CODE §6310, 6400-6404, ET SEQ., RETALIATION;
7. WRONGFUL TERMINATION, VIOLATION OF CALIFORNIA PUBLIC POLICY AND LABOR CODE § 1102.5, ET SEQ., RETALIATION;
8. WRONGFUL TERMINATION, VIOLATION OF CALIFORNIA, PUBLIC POLICY, FEHA AND GOVERNMENT CODE § § 12920, 12921, 12940(a), ET SEQ., AGE, RACE AND/OR DISABILITY DISCRIMINATION;
9. WRONGFUL TERMINATION, VIOLATION OF CALIFORNIA PUBLIC POLICY, FEHA AND GOVERNMENT CODE §12940(j); RACIAL, NATIONAL ORIGIN HARASSMENT, HOSTILE WORK ENVIRONMENT; AND
10. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

On June 6, 2015, Reyes dismissed her third, fourth, fifth, sixth, and tenth causes of action. On June 1, 2015, Reyes filed a Motion for an Order Granting Leave to File a First Amended Complaint.

Reyes states that she intends to add a new sixth cause of action, removing her claims of wrongful termination pursuant to labor code sections, and adding allegations of violations of Government Code sections 12920, 12921, 12940, subd (a) for gender discrimination. Reyes also wants to replace her seventh cause of action with one for Wrongful Termination, Violation of California Public Policy, FEHA and Government Code section 12940, subd. (j), Sexual Harassment.

On June 1, 2015, Delta Tau filed a Motion for Judgment on the Pleadings. On July 7, 2015, this court granted the motion without leave to amend as to the second cause of action and with leave to amend as to the fourth and ninth causes of action. Because this motion was pending, the Court allowed Reyes until August 5, 2015 to file an amended complaint.
Delta Tau filed its Opposition to this motion on July 23, 2015. Reyes filed her Reply on July 28, 2015.

DISCUSSION

I. Motion for Leave to File a First Amended Complaint

A. Rules of Court

As an initial matter, Delta Tau argues that the declaration of Peter David Cwiklo (“Cwiklo Declaration”) does not comply with the Rules of Court requirements because it does not indicate what facts giving rise to the amended allegations were discovered, or why this request was not made earlier. (Opposition at p. 4.)

California Rules of Court Rule 3.1324 requires that motions to amend pleadings: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

“A separate declaration must accompany the motion and must specify: (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.”

Cwiklo’s declaration in the original motion states that these new causes of action are brought based on Reyes’ April 15, 2015 DFEH complaint for gender discrimination and sexual harassment, but does not explain why these issues were not raised in her original DFEH complaint along with the basis for her other causes of action. This is especially the case given that the claimed actions date back to the period from 2007 to 2010. The court finds that there is partial compliance with CRC Rule 3.1324 because Reyes is correct that she only received a right-to-sue letter from DFEH on April 15, 2015. However, no explanation is given as to why Reyes failed to include a gender discrimination and sexual harassment claim in her initial DFEH claim, which would have enabled her to file all claims in this lawsuit.

B. Timing and Prejudice

Code Civ. Proc. (“CCP”) section 473 subd. (a)(1) provides that:

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court’s denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.)

“Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Notably, in the two principal cases relied upon by the Delta Tau defendants, the plaintiff sought leave to amend on the eve of trial or during trial, and the court found that such a late amendment would be prejudicial. For example, in Magpali, supra, the plaintiff’s original complaint filed July 5, 1992 stated causes of action for breach of contract, fraud and intentional infliction of emotional distress. (Magpali v. Farmers Group, Inc., supra, 48 Cal.App.4th at p. 475–476.) A demurrer to the complaint was overruled, and summary judgment was denied. Trial was set for March 11, 1994, but Magpali informed defendants on March 8, 1994 that he intended to amend his complaint to bring a new claim under the Unruh Civil Rights Act, and filed his motion on March 10, 1994. The Court of Appeal upheld the trial court’s denial of their motion for leave to file an amended complaint, holding that Magpali “did not give an explanation for leaving the Act claim out of the original complaint or bringing the request to amend so late,” and that defendants were prejudiced because “in preparing for trial on claims of breach of contract, misrepresentation, and intentional infliction of emotional distress, it had not discovered or deposed many of the witnesses who would support the new allegations, and had not marshaled evidence to oppose the contention that a systemwide discriminatory policy existed.” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486–487; see also Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940 [court upheld trial court’s denial of leave to amend answer at close of defendant’s case at trial based on improper delay and lack of diligence by defendant in seeking earlier amendment].)

By contrast, in the Supreme Court case relied on by plaintiff, Mesler v. Bragg management Co. (1985) 39 Cal.3d 290, 297, the court found that it was an abuse of discretion for the trial court not to allow the plaintiff leave to amend to allege an alter ego theory just six weeks before trial where there the court found that this amendment would not have surprised defendant given the allegations of agency in the initial complaint. In the other case relied on by Reyes, Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, the court allowed the plaintiff to amend her divorce action complaint where the case had not yet been set for trial. (Id. at p. 530.)

Delta Tau argues that any sexual harassment or gender-based discrimination would have occurred during Reyes’ employment, which ended in February 2014. (Opposition at pp. 4–5.) They argue that this late amendment prejudices them because nowhere in her previous complaint, or during her deposition, has Reyes indicated that she was subject to sexual harassment or gender discrimination. Delta Tau will therefore be required to perform an entirely new round of discovery, which will not be completed before the February 17, 2016 trial date, functionally eliminating their ability to seek summary adjudication. (Opposition at pp. 5–6.) Delta Tau requests a continuance of the trial if the court decides to grant this motion. (Opposition at pp. 6–7.)

Reyes argues that there is no prejudice from allowing an amended complaint eight months before trial. (Reply at p. 2.) (The court notes it is approximately six and a half months before the trial date, but still a significant amount of time.) Reyes also argues that her discovery responses to Delta Tau discussed her gender discrimination claim as early as February 13, 2015. (Reply at p. 3–4; Exs. D, E.) The basis for these claims was explained six weeks before Delta Tau took Reyes’ deposition, but Delta Tau did not ask any questions regarding gender discrimination. (Reply at p. 4.) In addition, Delta Tau has only taken two depositions – that of Reyes and Leiva, and Leiva did testify regarding the facts underlying the sexual harassment claim. Reyes states that her DFEH claim regarding gender discrimination was made on April 15, 2015, within the one-year statute of limitations beginning on her termination, and she received her right-to-sue letter on the same day. (Reply at pp. 6–7, Exs. G, H.)

C. Analysis

First, the court notes that Reyes does not give an adequate reason why she has delaying bringingt these claims. According to Reyes’ discovery responses from February 13, 2015, the claims themselves are based on events occurring from 2007 to 2010. (Reply Exs. D, E.) Although Reyes only received her right-to-sue letter from DFEH on April 15, 2015, she offers no explanation for why the gender discrimination and sexual harassment claims were not included in her original DFEH claim filed on August 22, 2014, which was the basis for her other discrimination claims in her original complaint.

Having said that, Reyes does have the right to bring a separate lawsuit based on the April 15, 2015 right-to-sue letter, which would be very inefficient for all parties. While it is true that the gender discrimination and sexual harassment claims raise new facts, there is significant overlap between the claims in that they involve the same parties, the same time frame, and the same conduct (in terminating Reyes) by the Delta Tau defendants.

Moreover, the Delta Tau defendants have not shown how they would be prejudiced by this amendment. Prejudice to a defendant is a required if a court is to deny leave to file an amended pleading. If the court allows an amendment, it will be made over six and a half months prior to trial – with significantly greater time than in Roemer, supra (mid-trial) and Magpali, supra (day before trial). Delta Tau was also on notice that Reyes was claiming gender discrimination as early as February 13, 2015, and could have inquired of Reyes as to whether she was going to allege the additional claims and, if yes, taken discovery on the new issues. Additionally, this court already ruled that Reyes may amend her complaint to address deficiencies addressed in Delta Tau’s Motion for Judgment on the Pleadings, so an amended complaint would be filed by August 5, 2015 as to the two claims for which the Court granted leave to amend.

There is adequate time for Delta Tau to perform discovery on these additional claims. If the length of discovery is such that it appears Delta Tau could not timely file a motion for summary adjudication before trial, they may ask the court to continue the trial date.

The motion for leave to file a first amended complaint is GRANTED. Reyes shall have until August 5, 2015 to file a First Amended Complaint.

Plaintiff to give notice.

Dated: Tuesday August 4, 2015

__________________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court