Opinion
B315203
01-26-2024
CESAR CRUZ, Plaintiff and Appellant, v. CEDAR CONSTRUCTION & DEVELOPMENT, INC. et al., Defendants and Respondents
Employee Justice Legal Group, Kaveh S. Elihu and Daniel J. Friedman for Plaintiff and Appellant. Horowitz &Clayton, Craig A. Horowitz and Wayne D. Clayton for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment and orders of the Superior Court of Los Angeles County No. 19STCV40718. William F. Fahey, Judge. Judgment vacated and orders affirmed in part, reversed in part, and remanded with directions.
Employee Justice Legal Group, Kaveh S. Elihu and Daniel J. Friedman for Plaintiff and Appellant.
Horowitz &Clayton, Craig A. Horowitz and Wayne D. Clayton for Defendants and Respondents.
GRIMES, J.
SUMMARY
Plaintiff Cesar Cruz sued Cedar Construction &Development, Inc. (defendant or Cedar) and its owner, Paul Azzi (collectively, defendants). In the operative first amended complaint, plaintiff asserted he was misclassified as an independent contractor. Plaintiff alleged multiple wage and hour violations (including failure to pay wages and overtime compensation and failure to provide rest periods (but not failure to provide meal periods), unfair competition, and a representative claim on behalf of his coworkers for civil penalties under the Private Attorneys General Act of 2004 (PAGA, Lab. Code, § 2698 et seq.).
The trial court granted defendants' motion for summary judgment. The court concluded it was undisputed plaintiff did not work for defendants within the PAGA period (one year plus 65 days). The court further found no triable issues concerning plaintiff's status as an independent contractor under the test established in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 957 (Dynamex). The latter finding resulted principally from the trial court's refusal to consider plaintiff's evidence on the ground it was improper for plaintiff to state, in his reply separate statement, that defendants' facts were "irrelevant" and/or "disputed in part."
We agree with the trial court that there was no evidence plaintiff suffered a Labor Code violation during the PAGA period, so he had no standing under PAGA as an "aggrieved employee" against whom "one or more of the alleged violations was committed." (Lab. Code, § 2699, subds. (a) &(c).) But the trial court erred, with respect to plaintiff's individual claims, in refusing to consider plaintiff's evidence and therefore finding no triable issues of fact as to whether plaintiff was an independent contractor under the Dynamex test. We therefore reverse the grant of summary adjudication on plaintiff's individual claims.
Plaintiff also appeals the trial court's denial of his motion to file a second amended complaint, adding a class action claim for meal period violations. We find no abuse of discretion in that ruling.
FACTS
Plaintiff filed his complaint on November 12, 2019, and the operative first amended complaint on January 7, 2020. As mentioned, the operative complaint alleged multiple Labor Code violations and other causes of action, including a representative PAGA claim.
We begin with a few facts that are not in dispute, and will recount others in connection with our discussion of the legal points at issue.
Defendant is "a general contractor construction company." Plaintiff has worked in the construction industry for about 15 years and is an undocumented immigrant. Plaintiff testified that in 2011, he met with defendant Azzi and talked about "potentially getting work projects from Cedar" and "that I would work at Cedar." He told Mr. Azzi that he was a plumber and a handyman. Plaintiff testified that his understanding at the time about the arrangement between him and Cedar was "[t]hat I would work directly with Cedar Construction."
Plaintiff testified that "no one at Cedar" supervised his plumbing work or his handyman work for Cedar, which began in 2012. According to Mr. Azzi, "[a]s of September 8, 2018, [plaintiff] voluntarily ceased accepting offers to work on plumbing and handyman projects for Cedar." (Plaintiff testified he stopped doing so "in early September 2018," because of a "verbal attack" by Mr. Azzi, who told plaintiff that he was "worthless or useless.")
This litigation ensued and ended with the trial court's grant of summary judgment to defendants. Plaintiff filed a timely appeal from the judgment.
DISCUSSION
1. The Standards of Review
A defendant moving for summary judgment must show "that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) Summary judgment is appropriate where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Id., subd. (c).)
Our Supreme Court has made clear that the purpose of the 1992 and 1993 amendments to the summary judgment statute was" 'to liberalize the granting of [summary judgment] motions.'" (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) It is no longer called a "disfavored" remedy. (Ibid.) "Summary judgment is now seen as 'a particularly suitable means to test the sufficiency' of the plaintiff's or defendant's case." (Ibid.) On appeal, "we take the facts from the record that was before the trial court ....' "We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." '" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
We review the trial court's denial of plaintiff's motion for leave to amend the complaint for abuse of discretion. (Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1000.)
2. Summary Adjudication of Plaintiff's PAGA Claim
PAGA authorizes an "aggrieved employee" to bring an action "on behalf of himself or herself and other current or former employees." (Lab. Code, § 2699, subd. (a).) An "aggrieved employee" is defined as "any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed." (Id., subd. (c).)
"The statute of limitations under PAGA is one year from the date of the last violation." (LaCour v. Marshalls of California, LLC (2023) 94 Cal.App.5th 1172, 1184; Code Civ. Proc., § 340, subd. (a).) "An alleged aggrieved employee cannot file a PAGA action until after the aggrieved employee exhausts PAGA remedies by filing a notice with the LWDA [Labor and Workforce Development Agency], and the statute of limitations is tolled up to 65 days to give the LWDA a chance to respond to the notice." (LaCour, at p. 1185; see Lab. Code, § 2699.3, subds. (a), (d).)
A plaintiff does not have standing to bring a PAGA representative claim for alleged violations occurring after he is no longer employed. (See Robinson v. Southern Counties Oil Co. (2020) 53 Cal.App.5th 476, 484 ["Here, [the plaintiff] purports to bring a representative action based on violations alleged to have occurred . . . after January 27, 2018. By then, however, [the plaintiff] was no longer employed by [the defendant] and thus was not affected by any of the alleged violations."].)
Here, it is undisputed that, after September 8, 2018, plaintiff no longer performed any work for defendants in any capacity. Plaintiff filed his PAGA complaint on November 12, 2019, the last possible day to do so (the 430th day (365 plus 65) after September 8, 2018). This means that, unless plaintiff worked for defendant on September 8, 2018, the last day within the PAGA period, he was not "an aggrieved employee."
Defendants' undisputed material fact (UMF) No. 6 stated that plaintiff "ceased accepting projects from Cedar Construction on September 8, 2018." UMF No. 6 was supported by a declaration from Mr. Azzi that "[a]s of September 8, 2018 [plaintiff] voluntarily ceased accepting offers to work on plumbing and handyman projects for Cedar." From this statement, we may reasonably infer that plaintiff did not work on that day, and therefore was not "an aggrieved employee" at any time within the PAGA limitations period. As we know, the summary judgment statute specifies that once a defendant has met his or her burden of showing that an element of a cause of action cannot be established or that there is a complete defense, the burden shifts to the plaintiff to show a triable issue of material fact exists, and to do so "shall set forth the specific facts showing that a triable issue" exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
Plaintiff, however, produced no evidence that he performed any work for defendants on September 8 or that he suffered a Labor Code violation on that day. Plaintiff responded to defendants' UMF No. 6 by stating it was "Irrelevant" and "Disputed in Part." Plaintiff continued: "Plaintiff timely filed his LWDA PAGA letter and timely filed his Complaint after the sixty-five day tolling period expired. It is immaterial whether Plaintiff worked for Cedar within the previous year of the PAGA period." The only "evidence" he cites for this point is "Doc # 87; Plaintiff's Complaint."
Under the summary judgment statute, the plaintiff "shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists." (Code Civ. Proc., § 437c, subd. (p)(2).) "[S]pecific facts" are required (ibid.), and plaintiff submitted no declaration stating he worked on September 8, or otherwise controverting Mr. Azzi's declaration, and cited no other evidence on the point. We can therefore find no error in the trial court's conclusion that plaintiff "fails to proffer evidence" of a Labor Code violation "within the PAGA period," and "it is undisputed that [plaintiff] did not work for defendants during the PAGA period."
Plaintiff contends an unsigned, undated resignation letter on Cedar Construction letterhead, which states he "fully resign[ed] of my own accord . . . effective September 8, 2018," and "I confirm that I was scheduled to work on September 8, 2018 and decided to leave the job and resign," is evidence he worked that day. He then asserts he suffered from "at least one Labor Code violation on September 8, 2018 and thereafter" because defendants "failed to pay his wages due within 72 hours," and "[s]ince it is unclear how long [plaintiff] worked on September 8, 2018, [defendants] may have also violated" the Labor Code by requiring him to work during a mandated rest period. This argument goes nowhere.
For one thing, plaintiff did not cite this "evidence" in his response to defendants' UMF No. 6. For another, an unsigned, undated letter is not evidence plaintiff worked on September 8, 2018, or evidence of anything else stated in the document. Plaintiff's argument is not evidence; he presented no evidence he worked, and no evidence of any failure to pay wages within 72 hours of resignation. There is simply nothing to controvert defendants' evidence that "[a]s of September 8, 2018 [plaintiff] voluntarily ceased accepting offers to work . . . for Cedar."
At oral argument, plaintiff relied on Arce v. The Ensign Group, Inc. (2023) 96 Cal.App.5th 622 (Arce), a decision filed after he submitted his opening brief. Plaintiff argued Arce stands for the proposition that the plaintiff need not be employed by the defendant during the PAGA limitations period to be an aggrieved employee. Plaintiff misconstrues the import of Arce.
In Arce, the defendants contended the plaintiff was not an aggrieved employee because any Labor Code violations occurred outside the limitation period, "with the statute of limitations measured by one year from the last violation." (Arce, supra, 96 Cal.App.5th at p. 632.) The plaintiff's PAGA complaint alleged that failure to pay meal and rest break premiums at the time of the violations meant those premiums were due upon separation of employment, but were not timely paid or accurately calculated. (Id. at p. 631.) The plaintiff's last day of work was November 8, 2018; her last wage statement was issued on November 21, 2018; she was terminated on November 23, 2018; and she submitted her prefiling notice to the LWDA on November 15, 2019. (Id. at pp. 632, 627.)
The Court of Appeal observed that "any overdue premiums were required to have been paid in the November 21, 2018 wage statement - and every outstanding premium [defendants] failed to pay as part of this wage statement constituted its own Labor Code violation, each of which fell within the limitation period. It is undisputed that the final wage statement did not contain any premium payments." (Arce, supra, 96 Cal.App.5th at p. 632, italics added.)
This case is nothing like Arce. Here, plaintiff did not counter defendants' evidence that he was not employed by defendant on September 8, 2018, the only day falling within the PAGA limitations period. In short, the evidence (unlike that in Arce) was that plaintiff was not an aggrieved employee at any time within the PAGA limitations period. Arce is simply inapt on these facts.
Because the trial court correctly granted summary adjudication of plaintiff's PAGA claim on the ground he was not employed by defendants during the PAGA period, we do not consider the trial court's alternate conclusion that plaintiff cannot act as a PAGA representative for the state because of his status as an undocumented immigrant.
2. Plaintiff's Status: Independent Contractor or Employee
Turning to plaintiff's individual claims, we conclude defendants failed to establish the absence of factual disputes over whether plaintiff was an independent contractor or an employee.
a. The Dynamex test
Under Dynamex, the hiring entity has the burden to establish that the worker is an independent contractor and, in order to meet that burden, is required "to establish each of the three factors embodied in the ABC test-namely (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed." (Dynamex, supra, 4 Cal.5th at p. 957.)
b. Defendants' evidence
Defendants sought to show that plaintiff's individual claims of Labor Code violations failed "as a matter of law because Plaintiff was never an employee of Cedar, covered by the applicable Labor Code provisions."
As already mentioned, it was undisputed that Cedar is "a general contractor construction company;" plaintiff has worked in the construction industry for about 15 years; plaintiff told Mr. Azzi that he was a plumber and a handyman; and plaintiff testified that "no one at Cedar" supervised his plumbing work or his handyman work.
In addition, defendants offered evidence of the following facts it contended were undisputed: that Cedar "is not a plumbing company" and "is not a handyman company" (UMF Nos. 10 and 11); that "[w]hen discussing potential projects from Cedar with the owner Paul Azzi, [plaintiff] told Azzi that he was a construction worker by trade qualified to do plumbing and handyman projects" (UMF No. 13); that "[f]rom approximately June 2012 to September 8, 2018, Cruz accepted plumbing and handyman projects from Cedar" (UMF No. 14); and that "[t]he plumbing projects that Cruz accepted from Cedar were at a wide variety of different construction sites" (UMF No. 17). That is the entirety of the claimed undisputed facts supporting plaintiff's status as an independent contractor.
c. Plaintiff's response
Plaintiff's response to each of the UMF's just described was "Disputed in Part" (and in some cases also "Irrelevant"), followed by statements of other facts relating to plaintiff's claim of employee status, together with citations to evidence. For example, plaintiff's response to defendants' UMF Nos. 10 and 11 that Cedar "is not a plumbing company" and "is not a handyman company" was this:
"Defendants provide their clients with construction related services including but not limited to: residential remodels, apartment renovations, new additions, custom homes, shopping centers, tenant improvement, and seismic retrofitting." And "[t]his also included plumbing work" (UMF No. 10) and "[t]his also included handyman work" (UMF No. 11). As evidence, plaintiff cited the deposition testimony of Joe Karaan (defendant's person most knowledgeable (PMK)). Mr. Karaan testified, for example, that defendant does "full-on construction from the ground up" for residential spaces, and bids on those projects, and that defendant "does maintenance" for "residential properties, multifamily buildings," like fixing a clogged toilet or a leaking sink.
Another example is plaintiff's response to defendant's UMF No. 14, that from June 2012 to September 8, 2018, "[plaintiff] accepted plumbing and handyman projects from Cedar." Plaintiff responded, "Disputed in Part," and made a number of statements, each with evidence cited, such as: "[p]laintiff testified that he understood from his conversation with Mr. Azzi that he would be working at Cedar and with Cedar 'directly' "; "[p]laintiff did not have a Contractor's license, plumbing license, or electrician license"; and "[d]uring this time period, Plaintiff did not work for any other business, including Cedar's subcontractors."
d. The trial court's ruling
The trial court concluded that there was no triable issue as to part A of the Dynamex test, namely, "that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact." (Dynamex, supra, 4 Cal.5th at p. 957.) The court observed that in his deposition, plaintiff "unequivocally admitted that no one supervised him when he worked as a plumber or a handyman," and that none of the evidence plaintiff cited from his own and Mr. Karaan's depositions contradicted that testimony.
The trial court completely ignored the evidence plaintiff offered contradicting defendant's evidence concerning parts B and C of the Dynamex test (UMF Nos. 10, 11, 13, 14, and 17). The court stated that plaintiff "improperly argues" that those UMF's "are 'irrelevant and/or disputed in part.'" According to the court, "The rules do not permit a fact to be 'disputed in part.' Arguments in a Separate Statement are not proper and are ineffective in raising triable issues." The court "decline[d] the invitation to rummage through the papers to try to salvage plaintiff's case for him." Consequently, the court concluded defendants were entitled to summary adjudication of their claim that plaintiff was never an employee of Cedar.
e. Contentions and conclusions
Our examination of the record leads us to conclude that, in the circumstances here, the trial court abused its discretion in refusing to consider plaintiff's evidence.
While argumentative statements may be "ineffective to create triable issues" (Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471, 479, fn. 2), plaintiff's responses on this issue contain little, if any, argument. Plaintiff states facts and cites evidence to counter defendants' claim that he was an independent contractor and not an employee. This did not require the trial court "to rummage through the papers." The trial court had only to check the clearly cited evidence to see if it supported plaintiff's statements.
Nor do we think that responses that begin with "irrelevant" or "disputed in part" should result in the trial court's refusal to consider the opposing evidence. For example, part B of the Dynamex test requires a defendant to establish "that the worker performs work that is outside the usual course of the hiring entity's business." (Dynamex, supra, 4 Cal.5th at p. 957.) As we observed above, defendants produced evidence (Mr. Azzi's declaration) that Cedar is not a plumbing company or a handyman company. While those are literally true statements, they do not necessarily establish that plumbing and handyman work are "outside the usual course" (Dynamex, at p. 957) of Cedar's business. Cedar is a general contractor whose clients paid it to get plumbing and handyman work done as a part of its construction projects. Plaintiff responded to those UMF's (after stating "Irrelevant. Disputed in Part") with evidence of the construction related services that Cedar does provide to its clients, which included plumbing and handyman work. While the structure of plaintiff's responsive separate statement may have deviated to some extent from the rules, its substance was clear. The opposing evidence should not have been disregarded.
When plaintiff's evidence is considered, defendants have not established as a matter of law that plaintiff was an independent contractor. Even if we assume part A is established, based only on plaintiff's testimony that no one supervised him when he worked as a plumber or handyman, there is conflicting evidence on part B of the Dynamex test, as we have just shown.
Dynamex states: "[D]epending on the nature of the work and overall arrangement between the parties, a business need not control the precise manner or details of the work in order to be found to have maintained the necessary control that an employer ordinarily possesses over its employees, but does not possess over a genuine independent contractor. The hiring entity must establish that the worker is free of such control to satisfy part A of the test." (Dynamex, supra, 4 Cal.5th at p. 958.)
The same is true of part C of the Dynamex test: the hiring entity must prove "that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed." (Dynamex, supra, 4 Cal.5th at p. 957.) Defendants' evidence on this point included plaintiff's testimony about what he told Mr. Azzi about his qualifications in 2011: that he was a plumber and a handyman. Defendants also cited plaintiff's testimony that he did plumbing and handyman work on projects offered to him by Cedar, and stopped accepting such projects in September 2018. And, Mr. Azzi's declaration stated that "[s]ometimes Mr. Cruz declined projects we offered him stating that he was already working on another project (either with another general contractor or a direct customer of his)."
Plaintiff's opposition evidence pointed out that Cedar is a licensed general contractor and, as mentioned earlier, plaintiff testified that his understanding of the arrangement with Cedar in 2011 regarding the handyman and plumbing projects was "[t]hat I would work directly with Cedar Construction." Plaintiff testified he had no plumbing license or electrician license from the state, and Mr. Karaan, Cedar's PMK, testified that Cedar had no written subcontract with plaintiff and no proof or record of plaintiff having a license to perform any of the work he performed for Cedar.
In their respondents' brief, defendants do not mention plaintiff's contention he was an employee as a matter of law under Labor Code section 2750.5. That section states that "[t]here is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to [the Contractors State License Law, section 7000 et seq.] of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor." (§ 2750.5.) Section 2750.5 lists in detail the factors constituting satisfactory proof of independent contractor status. (Id., subds. (a)-(c).)
Plaintiff also testified he accepted every handyman or plumbing project Cedar offered him, and he denied that he was "sometimes . . . engaged in other projects, either with [his] own customers or another construction company." He specifically testified that from 2011 until September 2018, he did not accept projects from any other construction companies and did not work for any of his own customers doing plumbing or handyman services.
In short, defendant has not proved with undisputed evidence that plaintiff was "customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed." (Dynamex, supra, 4 Cal.5th at p. 957; see id. at p. 962 ["As a matter of common usage, the term 'independent contractor,' when applied to an individual worker, ordinarily has been understood to refer to an individual who independently has made the decision to go into business for himself or herself. [Citation.] Such an individual generally takes the usual steps to establish and promote his or her independent business-for example, through incorporation, licensure, advertisements, routine offerings to provide the services of the independent business to the public or to a number of potential customers, and the like."]; see also Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, 575 ["Dynamex requires more than mere capability to engage in an independent business. Defendants presented no evidence in their moving papers that [the plaintiff] in fact provided services for other entities or otherwise established a business 'independent' of his relationship with [the defendant]."].)
We necessarily conclude from defendant's failure to prove all three elements of the Dynamex test that summary adjudication was improper.
3. Plaintiff's Motion to Amend the Complaint a. Background
Plaintiff filed his lawsuit on November 12, 2019. He did not allege any class action claims, or any meal period claims. The operative complaint alleged that, from "on or about November 11, 2015 through on or about September 8, 2018, Plaintiff regularly worked six days per week, with a daily thirty-minute lunch ...."
A year later, on November 17, 2020, plaintiff requested leave to file a second amended complaint, to add a class action claim for failure to offer legally compliant meal periods. Plaintiff explained that he filed the motion because of information contained in PAGA discovery responses defendant produced on September 17 and 18, 2020. Defendants had refused to respond to plaintiff's PAGA discovery requests because their demurrer to the PAGA cause of action was still pending, and remained pending (because of the pandemic) until August 10, 2020, when the trial court overruled defendant's demurrer and defendant agreed to produce PAGA-related discovery. Plaintiff asserted that the discovery showed a noncompliant meal break policy: for example, auto-deducting 30 minutes without showing start and stop times.
The proposed second amended complaint's new allegations included, among others:
"Plaintiff and the putative class were not provided the opportunity to take meal breaks required under [Labor Code sections] 226.7 and 512 due to Defendants' policies and practices of assigning too much work resulting [in] Plaintiff and the putative class being forced to work through meal breaks, interrupting Plaintiff and the putative class during their meal breaks, providing meal breaks of less than 30 minutes in length, and by not providing meal breaks that began before the end of the fifth hour. In addition, Defendants did not compensate Plaintiff or the putative class with meal break penalty payments as required under the Labor Code." Also, "[d]espite not being provided legally compliant meal breaks, Plaintiffs and the putative class were often required to record that they took thirty (30) minute meal breaks on their timesheets."
Plaintiff also added the word "scheduled" to the allegation quoted earlier, so that it reads: "From on or about November 11, 2015 through on or about September 8, 2018, Plaintiff regularly worked six days per week, with a scheduled daily thirty-minute lunch ...."
Plaintiff's motion to amend had several procedural defects.
On January 4, 2021, the court denied plaintiff's motion "because it did not comply with [California Rules of Court, rule] 3.1324 and because plaintiff failed to provide the Court with the mandatory courtesy copies of the motion." The motion did not include a copy of the proposed amended pleading, and it did not state what allegations were proposed to be deleted or added and where, "by page, paragraph, and line number," those allegations were located. (Rule 3.3124(a)(1)-(3).) And plaintiff "failed to comply with Department 69's Online Courtroom Information re courtesy copies."
Then, on January 21, 2021, plaintiff filed a "Renewed Motion for Leave to File Second Amended Class Action Complaint," stating the grounds for the motion were that "the proposed amendment is in furtherance of justice" and citing Code of Civil Procedure sections 473 (amendment of pleadings) and 576 (authorizing the court to allow the amendment of any pleading at any time in the furtherance of justice). Plaintiff included a red-lined copy of the proposed amended complaint.
Defendants objected to the renewed motion, contending it was an improper motion for reconsideration; again failed to comply with court rules; was a sham amendment; constituted impermissible forum shopping; and would prejudice defendants. Plaintiff's reply brief contended he had rectified his procedural errors and the court had not relied on any substantive arguments in denying his motion; he did not delay in seeking an amendment; and the proposed amendment was not a sham pleading because he alleged he did not receive a meal period before the fifth hour of work.
The trial court denied plaintiff's renewed motion, saying plaintiff could not avoid the jurisdictional requirements of Code of Civil Procedure section 1008 "by labeling the instant motion something other than what it is - a motion for reconsideration." Plaintiff "has not even attempted to provide a declaration setting forth the 'new or different facts, circumstances or law' which would give the Court jurisdiction to grant the motion." In addition, plaintiff "continue[d] to ignore" court rules, failing to specify the" 'page, paragraph and line number' of the allegations proposed to be added and/or deleted."
Further, the court observed that the proposed amended complaint alleged that plaintiff and the putative class "were not provided the opportunity to take meal breaks," while the operative complaint alleged that plaintiff had worked six days per week "with a daily thirty-minute lunch." The court viewed the latter allegation as a judicial admission that plaintiff could not contradict, citing Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1154-1155 (trial court erred in relieving the plaintiff from the effect of his judicial admission that the defendant had been providing meal breaks since a specified date), disapproved on another ground in ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 196, footnote 8; Thurman, at pages 1156, 1158 (the plaintiff "failed to take the necessary procedural steps to obtain relief from judicial admissions" when he did not move to amend the complaint to conform to proof; even had the plaintiff done so, "the trial court's discretion to grant such relief is substantially limited").
Finally, the trial court concluded "that it would not be in the interests of justice to allow an amended complaint which might result in the case being transferred to a fourth judge"; and "defendant has been accused of serious violations and it is entitled to its day in court on the schedule now set. This is especially so because the [complaint] deals with allegations going back to 2011 and the Court is well aware that with the passage of time witnesses become unavailable and/or their memories dim."
b. Contentions and conclusions
Plaintiff contends the trial court abused its discretion in denying his motion to amend the complaint. He asserts his motion was timely; defendants were not prejudiced; and the denial resulted in plaintiff "being deprived of the right to assert a meritorious cause of action." We are not persuaded.
Plaintiff recites general principles that all cases acknowledge: amendments are to be allowed in furtherance of justice, and California courts have a policy of"' "great liberality in allowing amendments at any stage of the proceeding ...." '" (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.) Even if we were to agree with plaintiff that his motion to amend was not untimely, plaintiff's opening brief fails to address the multiple reasons the trial court stated for denying plaintiff's renewed motion, both procedural and substantive.
We will not repeat the reasons cited by the court that we have just recounted. Plaintiff's opening brief does not address the reconsideration issue, or the continued failure to adhere to court rules, or the contradiction between the allegations of the operative complaint and the proposed amended complaint. Indeed, plaintiff maintains that he "does not allege he and the other similarly situated employees did not receive a break; he alleges that he and his similarly situated coworkers did not receive a meal period before the fifth hour of work." This theory of the case simply ignores the other allegations of the proposed complaint (that he and others "were not provided the opportunity to take meal breaks") that contradict his operative complaint. (See Landis v. Superior Court (1965) 232 Cal.App.2d 548, 554- 555, italics added ["If the subject matter [of a proposed amended pleading] raises a disfavored plea, is insufficient to state a cause of action or defense, contradicts an admission in the original pleading without a showing of mistake or excuse, or changes the cause of action, denial is upheld."].)
Under these circumstances, we see no abuse of discretion in the trial court's ruling.
DISPOSITION
The judgment is vacated. The order denying leave to amend the complaint is affirmed. The cause is remanded to the trial court with directions to vacate its order granting summary judgment, and to enter a new order granting summary adjudication of plaintiff's PAGA cause of action and denying summary adjudication of plaintiff's individual claims. The parties shall bear their own costs.
WE CONCUR: STRATTON, P. J. WILEY, J.