Case Number: 20STCV23741    Hearing Date: November 21, 2022    Dept: 40

MOVING PARTY:               Plaintiff Rubi Castro.

Plaintiff Rubi Castro sues Defendants City of Long Beach and LBPD Sergeant Norma Carrillo for (1) FEHA Sex and Medical Discrimination (Long Beach only), (2) Failure to Prevent FEHA Discrimination and Harassment (Long Beach only), (3) Hostile Work Environment (Harassment) (Long Beach and Carrillo), (4) Intentional Infliction of Emotional Distress (Carrillo only), and (5) Declaratory Relief (Long Beach only), all in a September 22, 2020 First Amended Complaint (“FAC”). (Defendant Schirmer was released from this action after Plaintiff Castro failed to amend the FAC as to the sole claim alleged against him—IIED—following a December 1, 2020 ruling from this Court sustaining a Demurrer by Schirmer against this claim.)

Castro now requests Leave to Amend to add (1) supplemental factual allegations and procedural history to that pleading and to (2) file a Second Amended Complaint (“SAC”) adding the same factual allegations and procedural history, all of which involve issues later in time than September 22, 2020 (when the FAC was filed), (b) add a Retaliation component to the Second cause of action, and (c) add a Sixth cause of action for FEHA Retaliation. (Mot., 3:12-5:5; Mot., Exs. A [redlined copy of proposed update to FAC], B [redlined copy of proposed SAC], C [non-redline copy of proposed SAC].)

Defendant City of Long Beach and (through Joinder) Defendant Norma Carrillo argue this Motion should be denied because they would suffer prejudice if additional discovery were not permitted regarding the proposed Retaliation claims. In the alternative, should the motion be granted, Defendants request continuance of the trial dates to allow such discovery and opportunity to pursue consideration of summary adjudication, if warranted.

A motion to amend a pleading must conform with California Rules of Court, rule 3.1324, subdivisions (a) and (b). The court has broad discretion to permit amendments to pleadings, and “the court’s discretion will usually be exercised liberally to permit amendment of the pleadings.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428; Code Civ. Proc., § 473, subd. (a).) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard, at p. 1428) “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 ….”  (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

The Court DENIES Plaintiff’s Motion for Leave to Amend.

This Motion does not conform with California Rules of Court, rule 3.1324, subdivision (b) by altogether failing to include a “separate declaration [that] must accompany the motion and must specify” “[t]he effect of the amendment,” “[w]hy the amendment is necessary and proper,” “[w]hen the facts giving rise to the amended allegations were discovered,” and “[t]he reasons why the request for amendment was not made earlier.”

Plaintiff goes into great length arguing why the amendment and a SAC do not require further discovery in this action (Mot., 4:18-5:5; Reply, 2:18-5:8) and object vehemently to a continuance of the March 21, 2023 trial. The Court is not convinced.

Prior iterations of Plaintiff’s complaints have not included Retaliation and though the underlying allegations supporting the FEHA Discrimination claim also—as argued by Plaintiff (Reply, 2:21-23)—may underlie a Retaliation claim, the City of Long Beach and Norma Carrillo have not had an opportunity to conduct discovery as to these facts within the framework of Retaliation, most importantly depositions as to such issues, and where some of the new allegations in the proposed FAC and SAC are contemporaneous with or follow the closing of discovery in this action on May 6, 2022, as premised on the previous trial date of June 6, 2022. (Mot., Ex. B, Redlined Proposed SAC, ¶¶ 74-75.) Plaintiff seem a little too interested trapping Defendants into what might be characterized as a “gotcha” situation (Reply 2:20-3:3). There is prejudice in being unable to conduct discovery for a cause of action not previously plead.

The Court finds the prejudice of this position sufficient reason to deny this Motion: as Plaintiff would have it—give me leave to amend or file a SAC adding a Retaliation (Mot., Ex. B, Redlines Proposed SAC, ¶¶ 101, 127-135), but do not permit Defendants the opportunity to file dispositive motions against these possible claims, e.g., a motion for summary adjudication.

Last and contrary to Castro’s argument that “supplementing the [First Amended] [C]omplaint with additional facts” would not result in summary judgment or adjudication of any part of the current second cause of action—Failure to Prevent FEHA Discrimination and Harassment, with the added component of Retaliation in the proposed SAC—because any such challenge “would not completely dispose of the cause of action” (Reply, 4:20-14), the Court points the parties to Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-55, which explains that “a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.”

Plaintiff’s remaining points are unavailing. (See, e.g., Reply, 4:24-5:8 [arguing FEHA Discrimination and Retaliation have same underpinnings and thus implying no further need for discovery as to the Retaliation claims advanced in the proposed amendments].)

The Motion is DENIED.