This case was last updated from Los Angeles County Superior Courts on 06/30/2019 at 03:20:13 (UTC).

IVAN MORAN VS. CITY OF PASADENA, ET AL

Case Summary

On 09/22/2015 IVAN MORAN filed a Labor - Wrongful Termination lawsuit against CITY OF PASADENA. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4281

  • Filing Date:

    09/22/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

MORAN IVAN

Defendants

BECK MICHAEL

CITY OF PASADENA A MUNICIPAL ENTITY

SANCHEZ PHILLIP

Attorney/Law Firm Details

Plaintiff Attorneys

GLAVE COREY W.

GLAVE COREY WILLIAM

Defendant Attorneys

ARCE ELIZABETH TOM

BAGNERIS MICHELE BEAL

 

Court Documents

Notice of Case Management Conference

9/22/2015: Notice of Case Management Conference

Legacy Document

1/4/2017: Legacy Document

Legacy Document

1/25/2017: Legacy Document

Proof of Service (not Summons and Complaint)

2/7/2017: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

4/4/2017: Proof of Service (not Summons and Complaint)

Legacy Document

7/13/2017: Legacy Document

Legacy Document

10/3/2017: Legacy Document

Legacy Document

10/3/2017: Legacy Document

Legacy Document

10/23/2017: Legacy Document

Legacy Document

10/27/2017: Legacy Document

Minute Order

1/8/2018: Minute Order

Stipulation and Order to use Certified Shorthand Reporter

3/16/2018: Stipulation and Order to use Certified Shorthand Reporter

Notice of Ruling

8/28/2018: Notice of Ruling

Reply

1/11/2019: Reply

Certificate of Mailing for

5/6/2019: Certificate of Mailing for

Motion in Limine

6/5/2019: Motion in Limine

Motion in Limine

6/5/2019: Motion in Limine

Opposition

6/12/2019: Opposition

137 More Documents Available

 

Docket Entries

  • 06/27/2019
  • at 08:30 AM in Department B; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 06/13/2019
  • at 09:48 AM in Department B; Ex-Parte Proceedings - Held - Motion Granted

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  • 06/13/2019
  • Minute Order ( (Defendant City of Pasadena's Ex-Parte Application to Continue...)); Filed by Clerk

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  • 06/12/2019
  • Opposition ((partial) to Ex Parte Application to Continue Trial); Filed by Ivan Moran (Plaintiff)

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  • 06/11/2019
  • Ex Parte Application (To Continue Trial or Stay Matter); Filed by City Of Pasadena, a municipal entity (Defendant)

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  • 06/11/2019
  • Declaration in Support of Ex Parte Application; Filed by City Of Pasadena, a municipal entity (Defendant)

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  • 06/05/2019
  • Motion in Limine (No. 4 to Exclude Evidence of Monetary Damages); Filed by City Of Pasadena, a municipal entity (Defendant)

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  • 06/05/2019
  • Motion in Limine (No. 1 to Preclude Testimony of Michael Beck); Filed by City Of Pasadena, a municipal entity (Defendant)

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  • 06/05/2019
  • Motion in Limine (No. 2 to to Preclude Testimony of Lesley Cheung); Filed by City Of Pasadena, a municipal entity (Defendant)

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  • 06/05/2019
  • Motion in Limine (No. 3 to Exclude Evidence Related to Issues that have been Adjudicated); Filed by City Of Pasadena, a municipal entity (Defendant)

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184 More Docket Entries
  • 05/31/2016
  • Minute order entered: 2016-05-31 00:00:00; Filed by Clerk

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  • 02/22/2016
  • at 08:30 AM in Department B; Case Management Conference - Not Held - Advanced and Vacated

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  • 12/07/2015
  • at 08:30 AM in Department B; Order to Show Cause Re: Failure to File Proof of Service - Not Held - Advanced and Vacated

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  • 11/25/2015
  • Notice; Filed by City Of Pasadena, a municipal entity (Defendant); Michael Beck (Defendant); Phillip Sanchez (Defendant)

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  • 10/19/2015
  • First Amended Complaint; Filed by Ivan Moran (Plaintiff)

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  • 09/22/2015
  • Notice of Case Management Conference; Filed by Court

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  • 09/22/2015
  • OSC-Failure to File Proof of Serv; Filed by Court

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  • 09/22/2015
  • Complaint filed-Summons Issued; Filed by null

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  • 09/22/2015
  • Civil Case Cover Sheet; Filed by Ivan Moran (Plaintiff)

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  • 09/22/2015
  • Summons; Filed by null

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Tentative Rulings

Case Number: EC064281    Hearing Date: March 13, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

ivis moran,

Plaintiff/Petitioner,

v.

city of pasadena, et al.,

Defendants/Respondents.

Case No.: EC064281

Hearing Date: March 13, 2020

[Tentative] order RE:

motion to strike, or in the alternative, tax costs

BACKGROUND

A. Allegations

Plaintiff/Petitioner Ivis Moran (“Plaintiff”) alleges that he was at all relevant times a full-time sworn member of City of Pasadena Police, holding the rank of police officer. (SAC, ¶4.) Plaintiff alleges that on January 23, 2012, Police Department received a complaint that Plaintiff assaulted a female co-worker, Kimberley Jones (“Jones”) in the stairwell of a parking structure outside the Police Department Headquarters (the “Stairwell Incident.”) (Id., ¶10.)

Plaintiff alleges that while he was being investigated for the complaints, the investigations and interviews conducted involved tactics that violated his rights. Among other things, he alleges that he was falsely informed that his interviewers did not know if a criminal investigation was being conducted against him, and that he was not properly informed about the reasons for the investigation and discipline.

The Second Amended Complaint (“SAC”), filed November 27, 2017, alleges causes of action for: (1) petition for writ of mandate pursuant to CCP §1094.5; (2) relief for violation of POBRA, Government Code, §3309.5; and (3) violation of civil rights, 42 U.S.C. §1983.

B. Relevant Background

The matter came for trial on September 3, 2019 and was concluded by oral argument on November 6, 2019. The Court issued its final Statement of Decision on February 6, 2020. Ultimately, the Court found that Plaintiff experienced numerous POBRA violations. The Court ordered Plaintiff to be reinstated with full back pay, restoration of lost seniority, and other lost fringe benefits. It also ordered that no further punitive action may be taken against Plaintiff with regard to the Stairwell Incident.

On February 28, 2020, the Court entered the Final Judgment prepared by the Court. The Court determined that Plaintiff was the prevailing party on the 1st cause of action for Petition for Writ of Mandate and 2nd cause of action for POBRA, such that he is entitled to recover his costs against City for those causes of action.

C. Motion to Strike/Tax Costs

On January 21, 2020, Plaintiff filed his Memorandum of Costs, wherein he seeks:

· Item 1. Filing and Motion Fees - $2,804.27

· Item 4. Deposition Costs - $9,192.16

· Item 9. Court Ordered Transcripts - $7,660.25

· Item 12. Models, Enlargements, and Photocopies of Exhibits - $3,212.34

· Item 14. Fees for Electronic Filing or Service - $1,987.96

· Item 16. Other - $277.30

· TOTAL: $25,134.28

On February 6, 2020, City filed a motion to strike or alternatively tax costs sought by Plaintiff.

On February 28, 2020, Plaintiff filed an opposition brief.

On March 6, 2020, City filed a reply brief.

DISCUSSION

1. Item 1: Filing and Motion Fees

CCP §1033.5(a)(1) classifies filing, motion, and jury fees as allowable costs under section 1032.

Plaintiff seeks to recover $2,804.27 for Item 1. City seeks to tax this cost by $1,231.75.

City argues that Plaintiff’s sought amount was not reasonably necessary to this litigation. First, City there is no receipt attached for the $456.75 petition for writ of mandate entry and that the cost appears to be to recover for Case No. BS173993 before Judge Beckloff. Second, City argues that the $775.00 charge for “Appeal” relates again to Case No. BS173993.

In opposition, Plaintiff argues that the costs were “reasonably necessary” to this litigation because City’s own litigation tactics drove Plaintiff to file a second writ of mandate and appeal.

However, the Court will only award the filing and motion fees incurred in this action in Case No. EC064281. As Case No. BS173993 was a separate action and not alleged as the 1st or 2nd causes of action of the SAC, this Court declines to award fees incurred by Plaintiff in connection with a separate case. Rather, to the extent that costs are awardable in Case No. BS173993, Plaintiff should file a motion for costs in Department 86 of the Writs and Receivers Department.

Thus, the Court grants City’s motion to tax Plaintiff’s Item 1 costs by $1,231.75 (i.e., $456.75 + $775.00). The total amount that shall be awarded to Plaintiff in Item 1 is $1,572.52.

2. Item 4: Deposition Costs

CCP §1033.5(a)(3) states that: (A) taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed; (B) fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language; and (C) travel expenses to attend depositions, are allowable costs under section 1032.

Plaintiff seeks to recover $9,192.16 for Item 4. City seeks to tax this cost by $681.98.

City does not dispute the amount of deposition costs incurred, except the late fees Plaintiff paid. In opposition, Plaintiff argues that he was unemployed and working as an Uber driver such that he was unable to pay the billing costs for court reporter services within 30 days. (Opp. at pp.3-4.)

The Court does not find that Plaintiff’s late fees are an allowable cost under CCP §1033.5(a)(3). Further, to the extent Plaintiff seeks such costs under subsection (c) for items not specifically listed, the Court declines to exercise its discretion in allowing Plaintiff to recover late charges for his failure to pay fees in a timely manner. While the underlying costs of the depositions are recoverable, the failure of Plaintiff to pay within 30 days of the depositions were not “reasonably necessary” costs incurred in furtherance of the litigation.

Thus, the Court grants City’s motion to tax Plaintiff’s Item 4 costs by $681.98. The total amount that shall be awarded to Plaintiff on Item 4 is $8,510.18.

3. Item 9: Court Ordered Transcripts

CCP §1003.5(a)(9) state that an allowable cost includes transcripts of court proceedings ordered by the court.

Plaintiff seeks to recover $7,660.25 for Item 9. In the opposition brief, Plaintiff argues that he is entitled to $758.50 more for additional invoices from the reporting service. City seeks to strike/tax this cost in its entirety by $7,660.25.

As an initial matter, the Court declines to award any additional costs Plaintiff incurred as the $758.50 cost was not disclosed in the Memorandum of Costs and Plaintiff has not amended the memorandum to include such costs. (See also Reply at p.5.) The additional $758.50 cost is for the reporting service that transcribed the closing arguments that was not disclosed in the Memorandum of Costs. Plaintiff provides a copy of the invoice for this amount from Veritext Legal Solutions. (Opp.at Ex. 4.) Plaintiff does not disclose when his counsel received the additional billing or state why he was unable to include this information in the Memorandum of Costs. (Opp. at p.4; Glave Decl., ¶6.) The Court also notes that the invoices attached to Exhibit 4 are dated from November 2019 to January 6, 2020 and the memorandum of costs was filed on January 21, 2020. Based on the invoice dates, it appears that Plaintiff and counsel should have been aware of these costs as well.

Next, City moves to strike the cost of court ordered transcripts, arguing that Plaintiff seeks transcripts that were not ordered by the Court, including $120 for a motion to augment record, $129.25 for a petition for writ of mandate, and $116 for motions for summary judgment. In opposition, Plaintiff acknowledges that hearing transcripts not associated with trial are not recoverable. (Opp. at p.4.) As such, the costs sought for the motion to augment record, petition for writ of mandate, and the summary judgment motion shall be taxed in the total amount of $365.25.

Next, City moves to strike the cost Plaintiff incurred in the amount of $2,670 for trial transcripts (rough), which was “billed to CWG”. (The Court notes that there is an additional cost for trial transcripts “(billed to LCW) (Plaintiff’s agreed portion)” in the amount of $4,625.00.[1]) City cites to an excerpt of the trial transcript dated September 23, 2019 wherein the Court stated: “I AM NOT ORDERING A TRANSCRIPT BECAUSE I THINK THAT CHOICE REMAINS WITH THE PARTIES AS TO WHICH THEY WANT TO DO.” (Arce Decl., Ex. A [9/23/19 Trial Transcript at 8:6-7].) The Court then went on to say: “I DID WANT TO MAKE CLEAR THAT I CONSIDER THE PREPARATION OF A TRANSCRIPT A REASONABLE AND NECESSARY COST FOR THIS CASE TO BE RECOVERED BY THE PREVAILING PARTY. SO EITHER – WHAT EITHER SIDE PAYS WILL BE RECOVERABLE. IN OTHER WORDS, IF ONE SIDE PAYS 10 PERCENT AND THEY ARE THE PREVAILING PARTY, THEY MAY RECOVER THEIR 10 PERCENT. IF ONE SIDES PAYS 90 PERCENT AND TEHYA RE THE PREVAILING PARTY, THEY WILL RECOVER THEIR 90 PERCENT. I THINK THAT’S CLEAR.” (9/23/19 Trial Transcript at 8:8-17.) City argues that the Court only contemplated the recovery of fees where the parties shared costs and that Plaintiff has not submitted a showing of his payment of costs. In opposition, Plaintiff argues that he agreed to pay a third of the trial transcript costs and that he requested clarification from City on the amount of fees he was required to pay.

As made clear by the Court’s statement, the Court intended to award fees incurred for trial transcripts to the prevailing party. In this action, Plaintiff was deemed the prevailing party by the Court in the Final Judgment. As such, the costs for trial transcripts shall be awarded to Plaintiff.

The Court grants City’s motion to tax Plaintiff’s Item 9 costs by $365.25. The total amount that shall be awarded to Plaintiff on Item 9 is $7,295.00.

4. Item 12: Models, enlargements, and photocopies of exhibits

An allowable cost under CCP §1033.5(a)(13) includes: “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.”

Plaintiff seeks to recover $3,212.34 for Item 12. City seeks to tax this cost by $1,963.82.

City argues that the costs Plaintiff seeks for copies of the Administrative Record ($459.39) should be stricken as duplicative, was not helpful to the trier of fact, and Plaintiff is already seeking $947.67 to replace the copy misplaced by the Court. (See Costs Memo. at Attachment 11.) In addition, City seeks to strike the costs Plaintiff incurred for exhibits to a Motion to Compel ($47.44); exhibits to Motion to Augment Record ($64.49); in-house copies for a Motion for Summary Judgment ($276.90); copy of exhibits to MSJ ($609.60); copy of exhibits to an opposition to MSJ ($153.08); Volume Four to Administrative Record ($59. 92); in-house copies for Trial Exhibits ($218.00); and transcription of Admin Leave Recording ($75.00).

Plaintiff argues that he filed 2 mandamus actions on the same disciplinary action and thus both copies were required, plus another copy was necessary to replace the Court’s misplaced copy. As discussed above with regard to Item 1, costs incurred in connection with Case No. BS173993 should be sought in that action. Thus, the Court will tax and reduce costs in the amount of $459.39 for the record.

As for the costs of exhibits in connection with various motions, the Court will allow the costs as being reasonably necessary and helpful to the trier of fact. Further, Plaintiff only seeks the costs of copying exhibits and not the remainder of the motion papers. Thus, the Court will allow such costs.

The Court grants City’s motion to tax Plaintiff’s Item 12 costs by $459.39. The total amount that shall be awarded to Plaintiff on Item 9 is $2,752.95.

5. Item 14: Electronic Filing or Service Fees

CCP §1033.5(a)(14) states that an allowable cost includes “[f]ees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.”

Plaintiff seeks to recover $1,987.96 for Item 14. City seeks to tax this cost by $1,129.95.

City argues that Plaintiff should not be able to recover costs for service not associated with this case, including the federal case (Moran v. City of Pasadena, U.S. District Court, Case No. CV-15-9136-JAK (MRWx)) in the amounts of: (1) $96.38 for an Application for Default; (2) $44.00 for a Joint Report; (3) $63.00 for a Motion to Compel; (4) $87.00 for a Scheduling Report; (5) $86.00 for a First Amended Joint Report; and (6) $60.13 for a Report on Discovery. Plaintiff argues that it was City who removed a portion of the action to federal court and thus the costs are recoverable. However, to the extent any such costs are recoverable in the federal action, Plaintiff should make such requests with the District Court. The Court will tax/reduce such costs in the total amount of $436.51.

Next, City argues that Plaintiff should not recover costs for $235.89, which were incurred for delivering courtesy copies of an opposition to an MSA. The Court will allow the recovery of this cost as reasonably necessary.

Finally, City moves to tax Plaintiff’s costs sought in connection with the writ of mandate case in Moran v. City of Pasadena, Case No. BS173993, which was before Judge Beckloff. City seeks to reduce costs in the following amounts: (1) $134.32 for "Petition of Writ of Mandate"; (2) $16.64 for "Trial Brief”; (3) $35.00 for "Trial Brief (Courtesy Copy)”; (4) $15.64 for "Opposition"; (5) $15.64 for “Reply”; (6) $33.00 for "Reply (Courtesy Copy)”; (7) $57.25 for "Opposition (Courtesy Copy)”; (8) $11.95 for "Ex Parte"; (9) $77.62 for "Ex Parte (Courtesy Copy)"; (10) $15.64 for "Notice of Lodging"; (11) $96.75 for "Ex Parte (Courtesy Copy)"; (12) $36.75 for "Ex Parte"; (13) $15.64 for "Opposition"; (14) $118.95 for "Notice of Appeal"; and (15) $13.65 for "Designation". The Court only deemed Plaintiff the prevailing party on the first and second causes of action in this action of EC064281 and that recovery of costs would only be awarded in connection with these claims. For the same reason discussed above, the Court will tax the costs regarding Case No. BS173993 in the total amount of $694.44.

The Court grants City’s motion to tax Plaintiff’s Item 14 costs by $1,130.95 (= $436.51 + $694.44). The total amount that shall be awarded to Plaintiff on Item 41 is $857.01.

6. Item 16: Other

“Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” (CCP §1033.5(c)(4).)

Plaintiff seeks to recover $277.30 for Item 14 for Federal Express and postage charges in the amount of $30.50 and $44.80 for opposition to MSJ and Trial Brief, and two CourtCall charges of $116 and $86 each. City seeks to tax this cost by $277.30.

The Court will allow the recovery of the FedEx and CourtCall charges.

The motion to tax Item 16 is denied.

CONCLUSION AND ORDER

City’s motion to strike/tax costs sought by Plaintiff is granted in part and denied in part such that Plaintiff’s requested costs shall be awarded as follows:

Plaintiff’s Cost Memorandum Request $25,134.28

· Item 1. Filing and Motion Fees - $1,572.52 (total reduction of $1,231.75)

· Item 4. Deposition Costs - $8,510.18 (total reduction of $681.98)

· Item 9. Court Ordered Transcripts - $7,295.00 (total reduction of $365.25)

· Item 12. Models, Enlargements, and Photocopies of Exhibits - $2,752.95 (total reduction of $459.39)

· Item 14. Fees for Electronic Filing or Service - $857.01 (total reduction of $1,130.95)

· Item 16. Other - $277.30 (total reduction of $0)

TOTAL COSTS AWARDED $21,264.96 (reduction of $3,869.32)

Accordingly, the total costs Plaintiff may recover from City is $21,264.96.

City shall provide notice of this ruling. 

[1] The Court assumes “CWG” refers to Corey W. Glave (Plaintiff’s counsel), and “LCW” refers to Liebert Cassidy Whitmore (City’s counsel).

Case Number: EC064281    Hearing Date: March 06, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

ivis moran,

Plaintiff/Petitioner,

v.

city of pasadena, et al.,

Defendants/Respondents.

Case No.: EC064281

Hearing Date: March 6, 2020

[Tentative] order RE:

motion for attorney’s fees

BACKGROUND

A. Allegations

Plaintiff/Petitioner Ivis Moran (“Plaintiff”) alleges that he was at all relevant times a full-time sworn member of City of Pasadena Police, holding the rank of police officer. (SAC, ¶4.) Plaintiff alleges that on January 23, 2012, Police Department received a complaint that Plaintiff assaulted a female co-worker, Kimberley Jones (“Jones”). (Id., ¶10.)

Plaintiff alleges that while he was being investigated for the complaints, the investigations and interviews conducted involved tactics that violated his rights. The Second Amended Complaint (“SAC”), filed November 27, 2017, alleges causes of action for: (1) petition for writ of mandate pursuant to CCP §1094.5; (2) relief for violation of POBRA, Government Code, §3309.5; and (3) violation of civil rights, 42 U.S.C. §1983.

B. Relevant Background

The matter came for trial on September 3, 2019 and was concluded by oral argument on November 6, 2019. The Court issued its final Statement of Decision on February 6, 2020. Ultimately, the Court found that Plaintiff experienced numerous POBRA violations. The Court ordered Plaintiff to be reinstated with full back pay, restoration of lost seniority, and other lost fringe benefits. Motion for Attorney’s Fees

On January 21, 2020, Plaintiff filed a motion for attorney’s fees in the amount of $1,470,400.00.

On February 24, 2020, City filed its opposition brief.

On February 27, 2020, Plaintiff filed a reply brief.

DISCUSSION

A. Entitlement to Attorney’s Fees

Plaintiff argues that he is entitled to recovering attorney’s fees pursuant to CCP §1021.5, Government Code, §3309.5, and Government Code, §800.

1. Government Code, §3309.5

Government Code, §3309.5(e) states:

(e) In addition to the extraordinary relief afforded by this chapter, upon a finding by a superior court that a public safety department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) to be awarded to the public safety officer whose right or protection was denied and for reasonable attorney's fees as may be determined by the court. If the court so finds, and there is sufficient evidence to establish actual damages suffered by the officer whose right or protection was denied, the public safety department shall also be liable for the amount of the actual damages. Notwithstanding these provisions, a public safety department may not be required to indemnify a contractor for the contractor's liability pursuant to this subdivision if there is, within the contract between the public safety department and the contractor, a “hold harmless” or similar provision that protects the public safety department from liability for the actions of the contractor. An individual shall not be liable for any act for which a public safety department is liable under this section.

(Gov. Code, § 3309.5(e) [italics added].)

In the Court’s Statement of Decision, the Court found that Plaintiff’s proof fell short of establishing specific intent by City to injure Plaintiff. (See Statement of Decision at pp.49-51.) The Court also indicted in footnote 16 on page 49 of its Statement of Decision that the analysis regarding specific intent was important for the determination of the availability of attorney’s fees. As stated in its decision, the Court found that while there appeared to be a knowing disregard for Plaintiff’s rights by City, Plaintiff had not established by clear and convincing evidence that City harbored a specific intent to injure Plaintiff. As such, attorney’s fees under section 3309.5 are not warranted.

2. Government Code, §800

Government Code, §800 states:

(a) In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, except actions resulting from actions of the Department of General Services, if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney's fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), if he or she is personally obligated to pay the fees in addition to any other relief granted or other costs awarded.

(Gov. Code, §800(a).)

Plaintiff argues that he is entitled to attorney’s fees pursuant to this section because all elements have been met. (Mot. at p.9.) In opposition, City argues that Plaintiff has not provided any legal basis that section 800 applies to POBRA claims. (Opp. at p.12.) In reply, Plaintiff argues that under the petition for writ of mandate, it was determined that Plaintiff was successful in proving that City’s “dishonesty” charge was an abuse of discretion and that City did not provide Plaintiff a fair hearing before the City Managers. (Reply at p.6.)

The Court does not find this section provides a basis for attorney’s fees in the context of this case and the 2nd cause of action for POBRA. Further, while the Court did find that the Plaintiff prevailed with respect to the First Cause of Action, the Court did not make a determination that any prior award, finding, or other determination of proceeding was the result of arbitrary or capricious action by City.

3. CCP §1021.5

Plaintiff seeks attorney’s fees primarily under CCP § 1021.5.

CCP § 1021.5 is a codification of the private attorney general doctrine adopted by the California Supreme Court in Serrano v. Priest (1977) 20 Cal. 3d 25, often called Serrano III. In Serrano III, the Supreme Court held that attorneys’ fees could be awarded pursuant to the inherent equitable powers of the court where the efforts of plaintiff’s counsel had resulted in the advancement of a policy interest grounded in the State Constitution. (Serrano III, supra, 20 Cal. 3d at 46-47.) Soon thereafter, the Legislature broadened the court’s power to award such fees by enacting CCP §1021.5. Section 1021.5 provides, in relevant part, as follows:

Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if:

(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons,

(b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and

(c) such fees should not in the interest of justice be paid out of the recovery, if any.

(CCP §1021.5.) Thus, the Court must first consider whether Plaintiff is the “successful party”, and then whether: “(1) plaintiffs' action ‘has resulted in the enforcement of an important right affecting the public interest,’ (2) ‘a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons’ and (3) ‘the necessity and financial burden of private enforcement are such as to make the award appropriate.’” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935.)

a. “Successful Party”

The concept of a successful party under CCP § 1021.5 appears quite broad. (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1346.) In effectuating the purpose of section 1021.5, courts have taken a “broad, pragmatic view” of what constitutes a “successful party. (Id.) A “successful” party means a “prevailing” party and plaintiffs may be considered “prevailing parties” for the purposes of attorney’s fees if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit. (Id.)

Here, Plaintiff can be determined the “successful” or “prevailing” party as this case has resulted in a judgment in his favor for his reinstatement with the Pasadena Police Department as well as full back pay, restoration of lost seniority, and other lost fringe benefits.

Thus, this preliminary element is met.

b. Enforcement of an important right protecting the public interest and Significant benefit to a large class of persons

In determining whether this action has resulted in the enforcement of an important public right, the Court must look at the case from a practical perspective.

“[T]he trial court, utilizing its traditional equitable discretion (now codified in § 1021.5), must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney fee award under a private attorney general theory.”

(Woodland Hills, supra, 23 Cal.3d at 938.) “[T]he Legislature obviously intended that there be some selectivity, on a qualitative basis, in the award of attorney fees under the statute, for section 1021.5 specifically alludes to litigation which vindicates ‘important’ rights and does not encompass the enforcement of ‘any’ or ‘all’ statutory rights.” (Id. at 935.) The Legislature contemplated that the judiciary would “exercise judgment in attempting to ascertain the ‘strength’ or ‘societal importance’ of the right involved.” (Id.)

Plaintiff argues that he has vindicated an important constitutional right of due process and fair hearing. (Mot. at p.6.) He argues that he was able to prove dozens of serious POBRA violations and was able to obtain relief that mandated the City to comply with POBRA, defined when and what notices had to be presented to officers, set forth when documents were to be produced to officers, and established what constituted fair notices and hearing. Plaintiff argues that the Court’s Statement of Decision will provide a deterrent to future POBRA violations by Defendants and thus there is both a “public interest” and “large class” of persons who are affected by the Court’s ruling.

However, the mere fact that Plaintiff’s lawsuit may have an affect on other officers is not sufficient to satisfy this element. As stated in Galante Vineyards v. Monterey Peninsula Water Management Dist.

“Entitlement to such an award does not turn on a balance of the litigant's private interests against those of the public but on a comparison of the litigant's private interests with the anticipated costs of suit.... Section 1021.5 is intended as a 'bounty' for pursuing public interest litigation, not a reward for litigants motivated by their own interests who coincidentally serve the public.... 'The private attorney general theory recognizes citizens frequently have common interests of significant societal importance, but which do not involve any individual's financial interests to the extent necessary to encourage private litigation to enforce the right.... To encourage such suits, attorneys fees are awarded when a significant public benefit is conferred through litigation pursued by one whose personal stake is insufficient to otherwise encourage the action.' ” (California Licensed Foresters Assn. v. State Bd. of Forestry

(Galante Vineyards, supra, 60 Cal.App.4th at 1126–1127 [italics added].) More simply, if the enforcement of the public interest is merely coincidental to the attainment of personal goals or is self-serving, then this requirement is not met. (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1348.)

Moreover, the Court’s Statement of Decision makes clear that Plaintiff obtained relief that was related to his own personal benefit. In its Statement of Decision, the Court made no extraneous findings that the City was enjoined from engaging in certain internal investigation or criminal investigation practices, nor did the Court specifically order City to change its practices. Rather, the Court held that based on the specific facts of Plaintiff’s case, there appeared to be a violation of only Plaintiff’s POBRA rights. As such, the Court’s ultimate decision on the matter was to have Plaintiff reinstated with full back pay. This matter did not involve any other officers or the POBRA violations that they may have experienced, nor was this an action brought by Plaintiff in a representative capacity on behalf of other officers. (See County of Inyo v. City of Los Angeles Thus, the Court does not find that Plaintiff has satisfied a showing a significant benefit to a large class of persons.

In support of his motion, Plaintiff cites to various cases, but the Court finds them not to be applicable to this case.

These cases do not support Plaintiff’s position that he is entitled to attorney’s fees under CCP §1021.5.

c. Necessity and financial burden of private enforcement.

This element is met if the cost of the claimant's legal victory transcends his personal interest—that is, when the burden of the litigation was disproportionate to the plaintiff's individual stake in the matter.” (Roybal v. Governing Bd. of Salinas City Elementary Sch. Dist. “[T]he ratio of dollars recovered to dollars spent is not the sole measure of the necessity and financial burden of the litigation. On the contrary, there may be ‘nonfinancial personal interests of sufficient strength and specificity to prompt an individual to pursue vigorously a suit notwithstanding a substantial financial burden in doing so.’” (Id.)

Plaintiff argues that private enforcement was the only realistic way for him to enforce his POBRA rights. (Mot. at p.7.) He also argues that the financial cost to bring this lawsuit outweighs any financial benefit because he will not be awarded any monetary damages, but instead will only receive incidental/ancillary damages through back pay (which he would have earned but for Defendants’ actions). (Id.) In opposition, City argues that Plaintiff’s action was purely personal (i.e., to overturn his termination and 7 years of back pay from March 2013), and that any enforcement of public interest is merely coincidental to the obtaining of personal goals. (Opp. at p.9.)

The Court agrees with City’s position on this element. As discussed in the Court’s Statement of Decision following trial on the matter, the Court tailored its analysis to the particular treatment that Plaintiff Moran faced in his investigations and the facts specific to Plaintiff’s case. The Court made no rulings enjoining the overall procedures of the City and the Pasadena Police Department. No injunctive relief on behalf of a larger group of persons was sought by Plaintiff and the Court did not make any rulings to include officers other than Plaintiff when issuing its Statement of Decision.

The Court also notes that Plaintiff is entitled to nearly 7 years of back pay upon his reinstatement. This is not an insignificant amount owed by City to Plaintiff. Thus, the cost (or financial burden) of private enforcement does not necessarily outweigh the benefit Plaintiff received by pursuing this action.

d. Conclusion regarding CCP §1021.5

Based on the above, the Court does not find that Plaintiff is entitled to an award of attorney’s fees under CCP §1021.5 as each of the requisite elements have not been established.

CONCLUSION AND ORDER

The Court denies Plaintiff’s motion for attorney’s fees.

City shall provide notice of this order.

Case Number: EC064281    Hearing Date: November 01, 2019    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

ivis moran,

Plaintiff/Petitioner,

v.

city of pasadena, et al.,

Defendants/Respondents.

Case No.: EC064281

Hearing Date: November 1, 2019

[Tentative] order RE:

motion for leave to file a third amended complaint

BACKGROUND

  1. Allegations

    Plaintiff/Petitioner Ivis Moran (“Plaintiff”) alleges that he was at all relevant times a full-time sworn member of City of Pasadena Police, holding the rank of police officer. (SAC, ¶4.) The Pasadena Police Department (“Police Department”) is alleged to be a subdivision of Defendant City of Pasadena (“City”). (Id., ¶5) Defendant Michael Beck (“Beck”) is alleged to be a city manager for Pasadena, and Defendant Phillip Sanchez (“Sanchez”) is alleged to be the chief of police for the City’s Police Department. (Id., ¶¶6-7.)

    Plaintiff alleges that on January 23, 2012, Police Department received a false complaint that Plaintiff assaulted a female co-worker, Kimberley Jones (“Jones”). (Id., ¶10.) Plaintiff alleges that he and Jones had consensual encounters and would text each other often, but that Jones omitted such statements from her report and deleted their text messages. (Id., ¶¶10-11.)

    Plaintiff alleges that while he was being investigated for the complaints, the investigations and interviews conducted involved tactics that violated his rights. Among other things, he alleges that he was falsely informed that his interviewers did not know if a criminal investigation was being conducted against him, and that he was not properly informed about the reasons for the investigation and discipline (i.e., that he was also being charged for false and misleading statements to investigators).

    The Second Amended Complaint (“SAC”), filed November 27, 2017, alleges causes of action for: (1) petition for writ of mandate pursuant to CCP §1094.5; (2) relief for violation of POBRA, Government Code, §3309.5; and (3) violation of civil rights, 42 U.S.C. §1983.

  2. Motion on Calendar

    This case has proceeded to a bench trial. The Court’s September 23, 2019 minute order reflects that the parties have rested their case.

    On September 23, 2019, the Court read and considered Plaintiff’s motion for leave to file a Third Amended Complaint (“TAC”). The Court set the motion for hearing this date.

    On October 21, 2019, City filed an opposition to the motion.

DISCUSSION

CCP §473(a)(1) states: “The 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; and may, upon like terms, enlarge the time for answer or demurrer. 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; and may upon like terms allow an answer to be made after the time limited by this code.”

CRC rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;

2) Why the amendment is necessary and proper;

3) When the facts giving rise to the amended allegations were discovered; and

4) The reasons why the request for amendment was not made earlier.

The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a 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 of Los Angeles County (1959) 172 Cal.App.2d 527, 530.)

DISCUSSION

Plaintiff moves for leave to file the TAC so that he can add specific references to the California Tort Claim Act and seek statutory penalties and damages pursuant to Government Code, §3309.5. A copy of the proposed TAC is attached to the moving papers.

In support of the motion, Plaintiff provides the declaration of his counsel, Corey Glave. Mr. Glave states that Plaintiff filed this action seeking, as primary relief, mandamus, injunctive relief (with ancillary relief for back wages/benefits that be part and parcel of any order reinstating Plaintiff’s employment), and a request for damages. (Glave Decl., ¶¶3-4.) The effect of the amendment would be to allow Plaintiff to seek all relief provided to him under Government Code, §3309.5 by: (1) adding paragraphs 4 and 103 to the TAC that he complied with the California Tort Claim provision by filing the claim on November 2, 2015 and Defendants did not respond to the claim; and (2) requesting statutory penalties and damages in paragraph 104 and in the pray for relief at paragraph 4. (Id., ¶¶7-8, 10.) Mr. Glave states that the amendment is necessary and proper because it allows him to seek all the relief afforded o him under POBRA. (Id., ¶11.) He states that because Plaintiff’s complaint included a petition for writ of mandate (CCP §1094.5), which must be filed within 90 days of the final administrative decision being issued, Plaintiff had to file the action in a shorter time and did not wait for the tort claim to be rejected by the City (which requires 45 days). (Id., ¶5.) He states that the Court struck the damages portion of the complaint for non-compliance with the tort claim provisions. (Id., ¶6.) Plaintiff now seeks to amend the complaint as to the tort claim provisions have been complied with (i.e., the tort claim was filed, and defendants did not respond to it, thereby making it a rejection of the claim). (Id.)

In opposition, City argues that the amendment would contradict the Court’s prior ruling, Plaintiff has not complied with the Government Claims Act, Plaintiff’s delay in seeking the amendment is inexcusable, and it would be prejudiced by the amendment.

Plaintiff argues that he would be prejudiced if this motion were denied and that there would be no prejudice against City because City had the opportunity in the past 2 years to conduct discovery regarding damages and that trial need not continue as the facts, evidence, and testimony on the matter of damages has already been introduced at trial. However, City argues that it did not pursue discovery on Plaintiff’s damages because on November 17, 2017, the Court (by Judge Goldstein) dismissed Plaintiff’s claim for non-incidental monetary damages as it related to the POBRA causes of action for Plaintiff’s failure to comply with the Government Claims Act. Though Judge Goldstein gave Plaintiff leave to amend the pleading, Plaintiff filed the SAC on November 27, 2017 and removed specific references to monetary damages. Thus, City argues that it did not pursue or find reason to expend resources or further discovery on the issue of damages. Similarly, even if there were a brief discussion of damages at trial, this was not the focus of the trial as damages were not at issue as raised in the pleading.

While “courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial … this policy should be applied only ‘[w]here no prejudice is shown to the adverse party….” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) A motion may be denied where inexcusable delay and probable prejudice to the opposing party is shown. (Id.) Here, Plaintiff made the request on essentially the last day of the bench trial and this motion is being heard after the parties have rested their respective cases. While amendments may be permitted up to and including trial, the portion of trial where the parties may present arguments and evidence has now been closed—all that remains are the parties’ closing briefs and closing arguments, which is to be heard on November 1, 2019.

City’s counsel states that City would be severally prejudiced because it does not have sufficient evidence to challenge Plaintiff’s speculative and unsubstantiated testimony regarding his alleged damages, plus City is foreclosed from conducting discovery as trial has concluded. (Arce Decl., ¶10.) City also points out that damages calculations would be complex as it would have to take into consideration Plaintiff’s lost earnings (wages, benefits, CalPERS, etc.), Plaintiff’s duty to mitigate, additional discovery and depositions, third-party subpoenas, supplemental written discovery, and economic experts, and the time to obtain such information and witnesses has passed.

It is also unclear to the Court why Plaintiff has delayed in filing this motion sooner. As acknowledged by Plaintiff, he filed his claim with City on November 2, 2015. He and his counsel also admit that the City had 90 days to respond to his claim or else it would be deemed a rejection of the claim. Though this might explain why it was not alleged in the initial complaint (filed September 22, 2015), this does not explain why Plaintiff was unable to add such claims after purportedly complying with the requisite claims process.

In the FAC, Plaintiff requested any and all relief afforded under Government Code, § 3309.5 to Plaintiff. City moved for judgment on the pleadings as to the POBRA cause of action in the SAC on the basis that Plaintiff did not comply with the Government Claims Act by presenting a timely claim. As summarized above, on November 17, 2017, Judge Goldstein granted the motion as to the POBRA cause of action finding that Plaintiff may seek equitable and injunctive relief (and even incidental monetary damages) on the POBRA claim, but he was required to comply with the Government Claims Act with regard to claims for monetary damages. Plaintiff submitted on the Court’s ruling and filed the SAC on November 27, 2017.

Thus, Plaintiff’s motion seeking monetary damages with regard to POBRA violations is essentially a rehashing of the arguments already raised by the parties in City’s motion for judgment on the pleadings nearly 2 years ago. As pointed out by City, Plaintiff’s motion is essentially a belated motion for reconsideration. Further, Plaintiff has not explained why he did not bring this motion for leave to file the TAC sooner—particularly since his government claim was deemed rejected nearly 4 years ago. (City also argues that even if Plaintiff’s government claim were timely filed, he was required to file suit for damages within 2 years of the date the cause of action accrued, which he failed to do, pursuant to Government Code, §945.6.)

For the reasons stated above, the Court denies Plaintiff’s motion for leave to file the TAC.

CONCLUSION AND ORDER

Plaintiff’s motion for leave to file a proposed TAC is denied. The SAC shall remain the operative pleading in this action. Plaintiff shall provide notice of this order.

DATED: November 1, 2019 ___________________________

John Kralik

Judge of the Superior Court

 

Superior Court of California

County of Los Angeles

North Central District

Department B

ivis moran,

Plaintiff/Petitioner,

v.

city of pasadena, et al.,

Defendants/Respondents.

Case No.: EC064281

Hearing Date: November 1, 2019

[Tentative] order RE:

motion for leave to file a third amended complaint

BACKGROUND

  1. Allegations

    Plaintiff/Petitioner Ivis Moran (“Plaintiff”) alleges that he was at all relevant times a full-time sworn member of City of Pasadena Police, holding the rank of police officer. (SAC, ¶4.) The Pasadena Police Department (“Police Department”) is alleged to be a subdivision of Defendant City of Pasadena (“City”). (Id., ¶5) Defendant Michael Beck (“Beck”) is alleged to be a city manager for Pasadena, and Defendant Phillip Sanchez (“Sanchez”) is alleged to be the chief of police for the City’s Police Department. (Id., ¶¶6-7.)

    Plaintiff alleges that on January 23, 2012, Police Department received a false complaint that Plaintiff assaulted a female co-worker, Kimberley Jones (“Jones”). (Id., ¶10.) Plaintiff alleges that he and Jones had consensual encounters and would text each other often, but that Jones omitted such statements from her report and deleted their text messages. (Id., ¶¶10-11.)

    Plaintiff alleges that while he was being investigated for the complaints, the investigations and interviews conducted involved tactics that violated his rights. Among other things, he alleges that he was falsely informed that his interviewers did not know if a criminal investigation was being conducted against him, and that he was not properly informed about the reasons for the investigation and discipline (i.e., that he was also being charged for false and misleading statements to investigators).

    The Second Amended Complaint (“SAC”), filed November 27, 2017, alleges causes of action for: (1) petition for writ of mandate pursuant to CCP §1094.5; (2) relief for violation of POBRA, Government Code, §3309.5; and (3) violation of civil rights, 42 U.S.C. §1983.

  2. Motion on Calendar

    This case has proceeded to a bench trial. The Court’s September 23, 2019 minute order reflects that the parties have rested their case.

    On September 23, 2019, the Court read and considered Plaintiff’s motion for leave to file a Third Amended Complaint (“TAC”). The Court set the motion for hearing this date.

    On October 21, 2019, City filed an opposition to the motion.

DISCUSSION

CCP §473(a)(1) states: “The 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; and may, upon like terms, enlarge the time for answer or demurrer. 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; and may upon like terms allow an answer to be made after the time limited by this code.”

CRC rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;

2) Why the amendment is necessary and proper;

3) When the facts giving rise to the amended allegations were discovered; and

4) The reasons why the request for amendment was not made earlier.

The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a 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 of Los Angeles County (1959) 172 Cal.App.2d 527, 530.)

DISCUSSION

Plaintiff moves for leave to file the TAC so that he can add specific references to the California Tort Claim Act and seek statutory penalties and damages pursuant to Government Code, §3309.5. A copy of the proposed TAC is attached to the moving papers.

In support of the motion, Plaintiff provides the declaration of his counsel, Corey Glave. Mr. Glave states that Plaintiff filed this action seeking, as primary relief, mandamus, injunctive relief (with ancillary relief for back wages/benefits that be part and parcel of any order reinstating Plaintiff’s employment), and a request for damages. (Glave Decl., ¶¶3-4.) The effect of the amendment would be to allow Plaintiff to seek all relief provided to him under Government Code, §3309.5 by: (1) adding paragraphs 4 and 103 to the TAC that he complied with the California Tort Claim provision by filing the claim on November 2, 2015 and Defendants did not respond to the claim; and (2) requesting statutory penalties and damages in paragraph 104 and in the pray for relief at paragraph 4. (Id., ¶¶7-8, 10.) Mr. Glave states that the amendment is necessary and proper because it allows him to seek all the relief afforded o him under POBRA. (Id., ¶11.) He states that because Plaintiff’s complaint included a petition for writ of mandate (CCP §1094.5), which must be filed within 90 days of the final administrative decision being issued, Plaintiff had to file the action in a shorter time and did not wait for the tort claim to be rejected by the City (which requires 45 days). (Id., ¶5.) He states that the Court struck the damages portion of the complaint for non-compliance with the tort claim provisions. (Id., ¶6.) Plaintiff now seeks to amend the complaint as to the tort claim provisions have been complied with (i.e., the tort claim was filed, and defendants did not respond to it, thereby making it a rejection of the claim). (Id.)

In opposition, City argues that the amendment would contradict the Court’s prior ruling, Plaintiff has not complied with the Government Claims Act, Plaintiff’s delay in seeking the amendment is inexcusable, and it would be prejudiced by the amendment.

Plaintiff argues that he would be prejudiced if this motion were denied and that there would be no prejudice against City because City had the opportunity in the past 2 years to conduct discovery regarding damages and that trial need not continue as the facts, evidence, and testimony on the matter of damages has already been introduced at trial. However, City argues that it did not pursue discovery on Plaintiff’s damages because on November 17, 2017, the Court (by Judge Goldstein) dismissed Plaintiff’s claim for non-incidental monetary damages as it related to the POBRA causes of action for Plaintiff’s failure to comply with the Government Claims Act. Though Judge Goldstein gave Plaintiff leave to amend the pleading, Plaintiff filed the SAC on November 27, 2017 and removed specific references to monetary damages. Thus, City argues that it did not pursue or find reason to expend resources or further discovery on the issue of damages. Similarly, even if there were a brief discussion of damages at trial, this was not the focus of the trial as damages were not at issue as raised in the pleading.

While “courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial … this policy should be applied only ‘[w]here no prejudice is shown to the adverse party….” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) A motion may be denied where inexcusable delay and probable prejudice to the opposing party is shown. (Id.) Here, Plaintiff made the request on essentially the last day of the bench trial and this motion is being heard after the parties have rested their respective cases. While amendments may be permitted up to and including trial, the portion of trial where the parties may present arguments and evidence has now been closed—all that remains are the parties’ closing briefs and closing arguments, which is to be heard on November 1, 2019.

City’s counsel states that City would be severally prejudiced because it does not have sufficient evidence to challenge Plaintiff’s speculative and unsubstantiated testimony regarding his alleged damages, plus City is foreclosed from conducting discovery as trial has concluded. (Arce Decl., ¶10.) City also points out that damages calculations would be complex as it would have to take into consideration Plaintiff’s lost earnings (wages, benefits, CalPERS, etc.), Plaintiff’s duty to mitigate, additional discovery and depositions, third-party subpoenas, supplemental written discovery, and economic experts, and the time to obtain such information and witnesses has passed.

It is also unclear to the Court why Plaintiff has delayed in filing this motion sooner. As acknowledged by Plaintiff, he filed his claim with City on November 2, 2015. He and his counsel also admit that the City had 90 days to respond to his claim or else it would be deemed a rejection of the claim. Though this might explain why it was not alleged in the initial complaint (filed September 22, 2015), this does not explain why Plaintiff was unable to add such claims after purportedly complying with the requisite claims process.

In the FAC, Plaintiff requested any and all relief afforded under Government Code, § 3309.5 to Plaintiff. City moved for judgment on the pleadings as to the POBRA cause of action in the SAC on the basis that Plaintiff did not comply with the Government Claims Act by presenting a timely claim. As summarized above, on November 17, 2017, Judge Goldstein granted the motion as to the POBRA cause of action finding that Plaintiff may seek equitable and injunctive relief (and even incidental monetary damages) on the POBRA claim, but he was required to comply with the Government Claims Act with regard to claims for monetary damages. Plaintiff submitted on the Court’s ruling and filed the SAC on November 27, 2017.

Thus, Plaintiff’s motion seeking monetary damages with regard to POBRA violations is essentially a rehashing of the arguments already raised by the parties in City’s motion for judgment on the pleadings nearly 2 years ago. As pointed out by City, Plaintiff’s motion is essentially a belated motion for reconsideration. Further, Plaintiff has not explained why he did not bring this motion for leave to file the TAC sooner—particularly since his government claim was deemed rejected nearly 4 years ago. (City also argues that even if Plaintiff’s government claim were timely filed, he was required to file suit for damages within 2 years of the date the cause of action accrued, which he failed to do, pursuant to Government Code, §945.6.)

For the reasons stated above, the Court denies Plaintiff’s motion for leave to file the TAC.

CONCLUSION AND ORDER

Plaintiff’s motion for leave to file a proposed TAC is denied. The SAC shall remain the operative pleading in this action. Plaintiff shall provide notice of this order.