Case Number: BC658829 Hearing Date: June 12, 2018 Dept: 51

Background

Plaintiff Rene Zapata sues defendants Workforce Enterprises, Inc., Vinotemp, Lucy Gonzalez, and Stephanie Quintero for damages based on allegations that defendants violated the Labor Code and discriminated against (and ultimately terminated) plaintiff on the basis of disability, race, and sexual orientation.

On April 21, 2017, plaintiff filed a complaint for:

Actual/perceived disability harassment,

Actual/perceived disability discrimination,

Actual/perceived disability retaliation,

Violation of the California Family Rights Act,

Failure to engage in the mandatory good-faith interactive process,

Failure to accommodate,

Race/national origin harassment,

Race/national origin discrimination,

Race/national origin retaliation,

Actual/perceived sexual orientation harassment,

Actual/perceived sexual orientation discrimination,

Actual/perceived sexual orientation retaliation,

Whistleblower violations,

Violation of California Labor Code section 923,

Intentional infliction of emotional distress,

Retaliation and wrongful termination in violation of public policy,

Failure to provide employee personnel files, and

Failure to provide wage and hour statements.

On May 18, 2018, plaintiff filed this opposed motion for leave to file a first amended complaint. The Court considered the moving, opposition, and reply papers and rules as follows.

Failure to Tab Exhibits

Plaintiffs’ counsel should note: “Each exhibit must be separated by a hard 8 1/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.” CRC, rule 3.1110(f).

All parties are ORDERED to strictly comply with this rule or risk their exhibits being rejected, struck, and/or disregarded, and/or a monetary sanction. Fax filing does not obviate compliance because courtesy copies may be delivered.

Procedural Requirements

A motion to amend a pleading before trial must (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; (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. CRC, rule 3.1324(a).

The motion must also be accompanied by a supporting declaration that specifies (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. CRC, rule 3.1324(b).

Analysis

Here, plaintiff proposes to “assert facts conforming to the legal theories already pleaded.” Fields Decl. ¶ 5. No causes of action are proposed to be added.

Defendants argue in opposition that the motion fails to include a declaration and that it is a sham pleading.

Defendants’ assertion that the proposed FAC is a “sham pleading” is wholly conclusory and is therefore not considered.

Although the motion does include a declaration, neither the declaration nor the motion specify when the facts giving rise to the amended allegations were discovered or why the request was not made earlier, both of which are required by California Rules of Court, rule 3.1324(b).

Conclusion

The motion is DENIED WITHOUT PREJUDICE. Plaintiff to give notice.