2016-00190804-CU-WT

Lisa Stellmacher vs. Dignity Health

Nature of Proceeding: Motion to File 1st Amended Complaint

Filed By: Boucher, Robert L.

Plaintiff Lisa Stellmacher’s motion for leave to file a First Amended Complaint is GRANTED.

Defendants Dignity Health dba Mercy San Juan Medical Center and Randy Adriano (collectively, “Defendants”) oppose the motion.

This is an employment action. On February 24, 2016, Plaintiff filed her Verified Complaint for Damages (“Complaint”), alleging eleven (11) causes of action for: alleged Disability Discrimination, Discrimination Based on Gender, Hostile Work Environment, Failure to Engage in Interactive Process, Failure to Reasonably Accommodate, Failure to Prevent Harassment and Retaliation, Wrongful Termination, Negligent Retention, Assault and Battery, and Intentional Infliction of Emotional Distress. According to the Reply, from then to September 26, 2017 (and continuing to the present), the parties have engaged in about 16 rounds of written discovery and about 10 depositions (including 2 days of Plaintiff s deposition). (Reply at 2.)

In the instant motion, Plaintiff seeks leave to amend to add a Twelfth cause of action for defamation, based on a document produced during discovery in this action. Specifically, Plaintiff seeks to add a cause of action for defamation based on an allegedly defamatory email. (Proposed FAC ¶¶ 108-123.) The proposed amendment would add facts supporting the existence and date of discovery of that email. (FAC ¶ 36.) According to Plaintiff, the allegedly defamatory email produced in discovery relates to the reasons why Defendants purportedly terminated Plaintiff’s employment: they allegedly supported her abusive male colleague over her when he attacked her, and disbelieved her despite evidence supporting her position. (Reply at 2 (citing Complaint ¶¶ 31-33, 36.)

On or about September 26, 2017, the allegedly-defamatory email was first produced in discovery. (Boucher Decl. ¶¶ 1-9, 11-13.) Under the late discovery rule, Plaintiff has one year from the date of discovery of publication to file a lawsuit. (Manguso v. Oceanside Unified School District (1919) 88 Cal.App.3d 725, 728-731.) This motion was filed on November 30, 2017, about two months after the email was first produced in discovery in this case (i.e., on or about September 26, 2017). (Boucher Decl. ¶¶ 1-9, 11-13.)

The proposed amended pleading is attached to counsel’s declaration accompanying the instant motion. (Declaration of Robert L. Boucher (“Boucher Decl.”) Exh. A.)

It is undisputed that trial is not yet set, and will not be set until next month. (Opp’n at 11.)

Legal Standard

“Trial courts are vested with the discretion to allow amendments in the furtherance of justice… That trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state…resting on the fundamental policy that cases should be decided on the merits.” (Hirsa v Superior Court (1981) 118 Cal.App.3d 486, 488-489.) Judicial policy favors resolution of all disputed matters

between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920,939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.)

A trial court has discretion to deny a motion for leave to amend where both “inexcusable delay and probable prejudice” is shown. (Magpali v. Farmers Group (1998) 48 Cal.App.4th 471, 487-488 [leave to amend made on the eve of trial properly denied in the trial court’s discretion where the new cause of action would have greatly expanded the case after the “trial date was set, the jury [was] about to be impaneled, counsel, the parties, the trial court, and the witnesses [had] blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery…”].)

Plaintiff argues that the amendment should be allowed because the additional cause of action falls within the applicable limitations period, or relates back to the original claims within the limitations period and Plaintiff has a good faith belief that she can prevail on the merits. Plaintiff also argues that the proposed amendment is in the furtherance of justice because these allegations arise from the same series of events alleged in the current Verified Complaint, and are brought within the applicable statute of limitations.

Plaintiff argues that disallowing the amendment would otherwise prejudice Plaintiff because she would need to file a duplicative lawsuit or would be left without redress of the wrong committed against her. Plaintiff also asserts that Defendants will not be prejudiced because it possessed, but withheld, the defamatory email, and so had notice of a possible claim of defamation. Plaintiff argues that this case is well within the discovery period, and that no trial date is yet set.

The Court agrees with Plaintiff that amendment is proper here. The proposed “defamation” cause of action is undisputedly premised on many of the same facts already alleged in the complaint. The delay in filing the motion for leave to amend can be explained by the delay in discovery of the email as a basis for the proposed “defamation” cause of action – the allegedly defamatory email was not revealed until discovery in this case. (Reply at 4 (citing Shivley v. Bozanich (2003) 31 Cal.4th 1230, 1242 (“Each publication ordinarily gives rise to a new cause of action for defamation.”).)

Any argument that the proposed amendment prejudices Defendants lacks merit. The motion was not made on the eve of trial and Defendants do not present any evidence of prejudice. The fact that Defendants were “on the eve of filing their motion for summary judgment” (Opp’n at 5) does not suffice. There has been no showing that Defendants will lose the opportunity to move for summary judgment/adjudication as against the proposed Twelfth cause of action, and no showing that summary judgment/adjudication motions will become untimely if not filed soon. Again, it is undisputed that the proposed amendment relates to the same facts already pleaded. The parties have been conducting discovery surrounding these issues, and discovery is underway – and not yet closed. It would appear that Defendants have ample time to seek follow up information refuting Plaintiff’s new claim for defamation. This motion is

timely made, and was made as soon as practicable after discovery of the email. Defendants do not claim, and have not shown, that Plaintiff knew about the defamatory email before it was produced in discovery. The Court is not persuaded that simply because Plaintiff “knew her credibility was questioned” by her employer, as shown by the allegations in her original Complaint (Opp’n at 8), this means that Plaintiff “ignored known facts when she first filed” and/or that she knew or should have known that she could allege a defamation action from the start of this action.

To the extent that Defendants attack the merits of the proposed pleading, the validity of a proposed amendment is generally not considered in deciding whether to grant leave to amend. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281 [disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 407.] Such challenges to the pleadings are more properly addressed in a demurrer rather than in an opposition to a motion to amend. It is axiomatic that “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.) The Court will not disallow the proposed amendment on grounds of Defendant’s proffered affirmative defenses, such as “privilege,” at this procedural posture.

The motion to amend is GRANTED. The Court declines Defendants’ proposal that the motion be granted only with various “conditions” and limitations. (Opp’n at 6.) The Court declines to “defer its ruling until Defendants have an opportunity” to file a sanctions motion. (Id.) The Court declines to move the trial selection date and Defendants have not shown that moving that date is necessary or required under the circumstances.

Plaintiff shall file and serve the proposed amended complaint no later than January 11, 2018. The Court will not deem the proposed pleading filed and served.

Evidentiary Objections

Defendants argue that “the Motion is supported only by the Boucher Declaration, where he avers, ‘Plaintiff was unaware Defendant made any defamatory statements against her until Defendant produced the defamatory email. As such, Plaintiff was first aware of the alleged defamatory email on its date of production, September 26,

2017.’” (Opp’n at 9 (quoting Boucher Decl. ¶ 10).) Defendants object to this statement on grounds of hearsay and lack of personal knowledge.

As to the objected-to paragraph of the Boucher Declaration (¶ 10), the objection is SUSTAINED. The Court does not consider Attorney Boucher’s representations as to when Plaintiff became aware of any possibly defamatory statements against her. Attorney Boucher lacks personal knowledge to testify as to when Plaintiff personally knew anything.

However, the Court considers other portions of Boucher’s declaration to be non-hearsay and to be adequately based on his own personal knowledge regarding which documents were produced during discovery, and when (see Boucher Decl. ¶¶ 5-9 (the allegedly-defamatory email, DH-1254, was first produced on or about September 26, 2017, but was arguably responsive to discovery requests Plaintiff propounded 14 months earlier in July 2016); Exh. C to Boucher Decl.) Moreover, Defendants did not

object to any paragraphs of the Boucher Declaration except for Paragraph 10. (Opp’n at 9.)

Considering only the admissible evidence currently before the Court, then, it is undisputed that the email (DH-1254) was first produced on or about September 26, 2017. Relatedly, Defendant has not shown that Plaintiff had received or learned of this particular email before then.

The Court is not persuaded by Defendant’s argument that Plaintiff was on notice of her potential defamation cause of action because in her Complaint, she alleges that she knew her “credibility was questioned” by her employer. (Opp’n at 8.) The Court is simply not persuaded that knowing that someone “questions” a person’s “credibility” suffices to put that person on notice that they can allege a defamation cause of action.