Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge. Super. Ct. No. 05CECG00544
Juan M. Falcon & Associates, and Juan M. Falcon, for Plaintiff and Appellant.
Bacigalupi, Neufeld & Rowley, and Daniel W. Rowley, for Defendants and Respondents.
OPINION
Before Ardaiz, P.J., Vartabedian, J. and Dawson, J.
INTRODUCTION
Gloria Verduga appeals from the trial court’s decision denying her leave to amend her complaint. For the following reasons, we affirm.
PROCEDURAL HISTORY
Plaintiff and appellant Gloria Verduga filed her complaint in pro. per. in February 2005. The complaint asserted four causes of action: (1) sexual discrimination, sexual harassment and retaliation; (2) intentional infliction of emotional distress; (3) negligence and negligence per se; and (4) negligent infliction of emotional distress.
On August 17, 2005, attorney Richard Moser substituted in as Verduga’s counsel. Approximately 6½ months later, on March 1, 2006, Moser substituted out of the case and Verduga began representing herself once again.
While Moser was still Verduga’s attorney, verified discovery responses confirmed that Verduga had not been subjected to sexual harassment, sexual discrimination or retaliation. These discovery responses later served as the basis for defendants’ motion for summary judgment.
In opposition to the motion for summary judgment, Verduga requested leave to amend her complaint to state a cause of action based upon wrongful termination. She asserted that she was terminated because she assisted a former employee of Ashtree Apartments, Inc., in filing a worker’s compensation claim. The employee did not file a worker’s compensation claim.
On the date of the hearing on the motion for summary judgment, attorney Juan Falcon substituted in to represent Verduga, and argued in favor of granting leave to amend. The trial court denied the request for leave to amend, and granted defendants’ motion for summary judgment. Judgment was entered, and Verduga now appeals the trial court decision denying her leave to amend her complaint.
DISCUSSION
Under section 473 of the California Code of Civil Procedure, a trial court, “may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; .… The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; .…” (Code Civ. Proc., § 473, subd. (a)(1).) Thus, amendments that add a new cause of action, such as the amendment at issue in this case, require a noticed motion.
“‘[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown.’ [Citation.]” (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, “‘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, supra, 73 Cal.App.4th at p. 486.) Finally, a party appearing in pro. per. is not entitled to any preferential treatment by the court, and “is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) A pro. per. litigant is bound by the same procedural rules as are applicable to an attorney. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)
Here, the trial court did not abuse its discretion in denying Verduga leave to amend her complaint. Verduga sought leave to amend her complaint to add a new cause of action: wrongful termination in violation of public policy. Verduga was on notice that she had this potential cause of action as early as October 16, 2005, when she provided a verified answer to Form Interrogatories in which she stated: “I was terminated because I reported an industrial injury to our workers’ compensation insurance carrier and referred the injured employee to a physician.” However, she did not seek to amend her complaint to add this cause of action until June 8, 2006, when she filed her opposition to defendants’ motion for summary judgment. Verduga did not provide any explanation for the eight-month delay in seeking leave to amend. In addition, the delay was prejudicial to defendants because trial was set for July 24, 2006, significantly limiting the time for defendants to depose the injured employee, who was no longer employed by defendants and resided outside the subpoena power of the trial court, and to prepare for the hearing on the summary judgment motion and for trial. Because of the prejudicial and unwarranted delay in seeking to amend, the trial court did not abuse its discretion in denying Verduga’s request for leave to amend.
Finally, the strong likelihood that Verduga could not state a valid cause of action for wrongful termination supports the trial court’s decision to deny leave to amend. A claim for wrongful termination in violation of public policy must be based on constitutional or statutory authority. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79.) Verduga alleges a claim based upon Labor Code section 132a, which prohibits discrimination “against workers who are injured in the course and scope of their employment.” It protects these workers, as well as witnesses who testify or make known their intention to testify in another employee’s case. (Lab. Code, § 132, subd. (a)(3).) The record indicates that the injured employee never filed the worker’s compensation claim. Verduga is not alleging that she was an employee who was fired because of a worker’s compensation claim. She could not have testified at the other employee’s worker’s compensation case since that employee never filed a worker’s compensation claim. Thus, it is unclear how Verduga’s claim for wrongful termination in violation of public policy could be based upon Labor Code section 132a.
DISPOSITION
The judgment is affirmed. Costs to respondents.