1)Plaintiff Xavier Nunez?s Motion for Leave to File a Second Amended Complaint
?2)Status Conference
Plaintiff?s motion for leave to file a second amended complaint (SAC) is GRANTED. The proposed SAC adds claims for unpaid overtime, unpaid minimum wages and unpaid business related expenses, and includes each of these claims in the PAGA claim. In addition, the SAC adds facts to support the claims for failure to timely furnish accurate itemized wage statements and unlawful and unfair business practices.
On the one hand, as long as no prejudice to the defendant is shown, the liberal policy regarding amendment prevails and it is an abuse of discretion to refuse the amendment. (Mesler v. Bragg Mgmt. Co. (1985) 39 Cal.3d 290, 297.) On the other hand, ??even if a good amendment is proposed in proper form, unwarranted delay in presenting it may?of itself?be a valid reason for denial.?? (Record v. Reason (1999) 73 Cal.App.4th 472, 486.)
Considering the facts and circumstances surrounding this case, the court finds that there was no inexcusable delay on the part of Plaintiff in seeking leave to amend and no showing of any resulting probable prejudice to Defendant if leave to amend were granted.
First, it was only a little over 7 months from the time the FAC was filed to the time Plaintiff submitted a proposed SAC to Defendant for consideration, excluding the time period when discovery and motion practice in the action was stayed.
Second, there does not appear to be any resulting prejudice. There is no trial date. Defendant has not served any written discovery and no depositions have been noticed. (Pike Decl. ? 10.) Defendant will not be prevented from adequately defending itself in this action.
Finally, with respect to the merits of the new causes of action and facts alleged (including, e.g., Defendant?s argument that the new claims are time-barred and the applicability of collective bargaining agreement), ?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.?? (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)
Plaintiff is ordered to separately file the proposed SAC, attached as Exhibit 2 to the Pike Declaration, on or before 06/17/16.