Case Number: BC526950    Hearing Date: July 17, 2014    Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Thursday, July 17, 2014
Calendar No.: 7
Case Name: Choi, et al. v. Red Carpet Clubs of America, et al.
Case No.: BC526950
Motion: Motion for Leave to File Second Amended Complaint
Moving Party: Plaintiffs Young Choi and Choung Chace
Responding Party: No opposition filed
Notice: OK

Tentative Ruling: Motion for leave to file Second Amended Complaint is granted. The Proposed Second Amended Complaint is deemed filed and served as of this date.

Background –
On 11/7/13, Plaintiffs Young Choi and Choung Chace filed this action against Defendants Red Carpet Clubs of America; John Park; Red Carpet Enterprise, Inc.; Hwang, Won S & Susan TRS Hwang Family Trust; William Hwang; and Kathy Park arising out of their employment as hostesses in a restaurant. On 12/19/13, Kathy Park filed an answer and a cross-complaint against Plaintiffs asserting claims for indemnification, apportionment of fault, negligence, and intentional tort.

On 1/8/14, Plaintiffs filed an answer to Kathy Park’s cross-complaint. On 2/11/14, Plaintiffs filed a First Amended Complaint which asserts causes of action for (1) battery, (2) FEHA sexual harassment, (3) FEHA retaliation, (4) FEHA failure to prevent harassment and retaliation, (5) wrongful termination in violation of public policy, (6) failure to provide rest periods, (7) failure to provide itemized pay stubs, and (8) negligent infliction of emotional distress. The 1st COA is asserted against John Park and Kathy Park; all other COAs are asserted against all Defendants.

On 4/29/14, this action was assigned to this Court. On 5/21/14, William Hwang and Won S. Hwang & Susan Hwang Family Trust (“Hwang Defendants”) filed an answer to the FAC.

Motion for Leave to File Second Amended Complaint –
On 6/2/14, Plaintiffs filed a motion for leave to file a Second Amended Complaint which would add a cause of action for negligent supervision against the Hwang Defendants. See Mot’n Ex. A.

“In furtherance of justice,” the Court may permit amendment of any pleading on such terms as may be proper. See CCP §§ 473(a), 576. While the Court has discretion to permit or deny amendment of a complaint, denial of leave to amend is rare. Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642. The Court may deny leave to amend after long, inexcusable delay, where there is prejudice, such as where new issues would require further discovery. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. Absent prejudice, delay alone is not sufficient to deny leave to amend. See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.

Plaintiffs’ counsel explains that upon investigation, the Hwang Defendants have suggested the addition of the new claim for purposes of insurance coverage (Park Decl. ¶ 5) and that Hwang Defendants are the employers and/or de facto owners who negligently supervised its employees (id. ¶ 6). Plaintiffs’ counsel fails to explain why this motion was not made earlier. Cf. Park Decl. ¶¶ 4-5 (failing to indicate when the Hwang Defendants’ suggestion to add the new claim was made). This arguably constitutes ground for denial of leave to amend. See CRC 3.1324(b)(3)-(4). However, there was no opposition to this motion, and the Court finds no suggestion of prejudice in granting Plaintiffs leave to amend. Additionally, the Court notes that this motion was shortly filed after the Hwang Defendants answered the FAC. Therefore, the motion is granted: the Proposed Second Amended Complaint is deemed filed and served as of this date