Memorandum Points and Authorities

Cal. Super. - 6th Dist.November 20, 2020

9-14-21 Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/2/2021 3:21 PM Reviewed By: A. Floresca Case #20CV373869 Envelope: 6777830 20CV373869 Santa Clara - Civil A. Floresca 10 H 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Todd K. Davis State Bar Number 169654 FARLING, HECHT & DAVIS, LLP 96 North Third Street, Suite 660 San Jose, CA 95112 (408) 295-6100 Attorneys for plaintiff, Kimberly Doe SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA KIMBERLY DOE; Case NO: 20-CV-373869 Plaintiff MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; V. BBVA, an Alabama VVUVVVVVVV Corporation; MAHMOUD ALAEDDIN, Date: , 2021 an individual; et a1. Time: 9:00 a.m. Dept: 19 Honorable Peter Kirwan I. Introduction Plaintiff Kimberly Doe submits this Memorandum of Points and Authorities in support of her Motion for Leave to File a First Amended Complaint (FAC). The purpose of the proposed amendment is to clarify and narrow MS. Doe's damages claim, make the complaint conform more closely t6 the Plaintiff's testimony and eliminate the already dismissed cause of action for Intentional Infliction of Emotional Distress. The defendants will not be prejudiced by the amendment, the claims are the same and relate to the same events, the case has not been set for trial, discovery is on going and expert discovery has not started. Based on the liberal policy’of allowing'amendments, the l IO H 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 Court should grant the Plaintiff's leave to file the FAC. II. Background Plaintiff Kimberly'Doe was hired by defendant BBVA to work in their Sunnyvale bank branch in March 2019. Several months later defendant Mahmoud Alaeddin was hired by BBVA.to manage that branch. Defendant Alaeddin thereafter engaged in a course of conduct that included calling the Plaintiff names such as ”Princess“; “Barbie Doll”; ”Beautiful” and telling the Plaintiffi he loved her. Defendant Alaeddin invited the Plaintiff to social events, touch her without her permission and invited the Plaintiff on a weekend trip to Las Vegas where the married Alaeddin made it Clear they would Share a hotel room. The Plaintiff felt she could no longer work at BBVA and left Shortly'after. The Plaintiff thereafter filed a complaint with the Department of Fair Employment and Housing and filed this Suit. III. Chanqes to the Complaint The FAC consists of the following changes from the Complaint: The Plaintiff has more narrowly defined the damage allegations by limiting the emotional distress to May 2020 and before and eliminating wording that could confuse the claim as ”extreme emotional distress" or a claim for psychological or psychiatric injuries. The amendment Clarifies that the Plaintiff is not asserting a Claim for physical injuries. The fifth cause of action for Intentional Infliction of Emotional Distress, which was already dismissed has been eliminated. Minor factual errors, such as the Complaint’s allegation that Alaeddin had invited the 10 H 12 13 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff to weekends away, has been revised to allege there was only'one weekend.away invitation. In addition some minor grammatical and syntax changes were made and renumbering was required. IV. Legal Analysis A. California Courts Follow a Liberal Policy Regarding Amendments. An amendment may be made to the Complaint if it is in the interest of justice to do so. Code of Civil Procedure section 473(a)(l). California Courts have adopted a policy of ”liberal allowance of amendments." Nestle V. City of Santa Monica (1972) 6 Cal. 3d 920, 939. Such motions are routinely granted. “It is a rare case in which a court will be justified in refusing a party leave to amend his pleading so that he may properly present his case.” Morqan V. Superior Court (1959) 172 Cal. App. 2d 527, 530 (citing Guidery v.Green (1892) 95 Cal. 630, 633; Marr V. Rhodes (1900) 131 Cal. 271. It is not only error but also abuse of discretion to deny a motion for leave to file an amended complaint when it will not prejudice the other parties and is made in a timely fashion. Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761. Courts are bound to apply a policy of great liberality in permitting'amendments to pleadings ”at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. Atkinson v. Elk, supra. In considering whether other parties are prejudiced by‘an amendment, it is irrelevant that a new legal theory is introduced so long as the proposed amendment relates to the same general set of facts. Kittredqe Sports Co. V. Superior Court (1989) 213 Cal. App. 3d 1045, 1048. It is the fundamental policy Of the 3 12 i3 14 15 16 17 18 l9 2O 21 22 23 24 25 26 27 28 court that cases are decided by the merits (in allowing an amendment) Hirsa v. Superior Court, 118 Cal. App. 486. The rule is well established that great liberality will be used in allowing amendments and where an amendment provides merely the addition of matters essential to make the original cause of action complete the amendment should certainly be allowed by the court. Such an amendment effects no Change in the nature of the case, and can therefore cause no surprise or prejudice to the adverse party. In re Hunter’s Estate (1961) 194 Cal. App. 2d 859 (internal quotations omitted). B. Defendants Will Not Be Prejudiced and ThiS Motion Is Timely. The Defendants will not be prejudiced by the Plaintiff's amendment. The entire proposed amendment relates to the same set Of factual Circumstances addressed in the Complaint. The amendment narrows some Of the broader allegations that appeared in the Complaint and eliminates any ambiguity that the Plaintiff is alleging extreme emotional distress and physical injuries. The new allegations do not change the nature of the Claim. Additional discovery should not be required to explore defenses related to these claims, but as discovery is open, the defendants can conduct discovery and explore additional defenses. This motion is timely. There is no trial date and discovery is continuing. By the time of trial, the defendants will have had months to conduct any additional investigation and.discovery'related to the FAC and therefore there is no prejudice to the defendants. V. Conclusion For these reasons, the Plaintiff request that her motion for leave to file the First Amended Complaint for Damages be granted. IO H 12 13 14 l7 18 19 20 2] 22 23 24 25 26 27 28 The Plaintiff also requests that if leave is granted that the proposed First Amended Complaint for Damages attached.to the Notice Of Motion.be deemed the amended pleading and that it be deemed filed and served as of the date the Court grants the motion. DATED: July 2, 2021 FARLING, HECHT & DAVIS ,/ x 6/)»gm ’ Taad K. Davis Attorney for Plaintiff Kimberly Doe By: A NQUI 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 Doe v. BBVA USA, et al. Santa Clara County Case No.: ZOCV373869 PROOF OF SERVICE BY ELECTRONIC MAIL (EMAEL) ONLY | am a Citizen ofthe United States. My business address is 96 North Third Street, Suite 660, San Jose, CA 951 12. l am employed in the County of Santa Clara, where this mailing occurs. | am over the age of 18 years, and not a party to the within cause. My eiectronic service address is: maryben@fhd|lp.com. | electronically sewed today the attached document(s) described as: MEMORANDUM OF POINTS AND AUTHORITIES EN SUPPORT OF MOTION FOR LEAVE TO FlLE FIRST AMENDED COMPLAINT to the foilowing addresses: BBVA USA Mahmoud Alaeddin Joseph R. Lordan, Esquire David M. Marchiano, Esquire Allison L. Shrallow, Esquire Brown, Gee & Wenger LLP Lewis Brisbois Bisgaard & Smith LLP Two Wainut Creek Center #400 333 Bush Street #1 100 Walnut Creek CA 94596 San Francisco CA 94104-2872 925-943-5000 41 5-362-2580 C - 925-708-7042 Fax: 415434-0882 dmarchiano@bgwcounsel.com joseph.tordan@!ewisbrisbois.com tpico@bgwcounsel.com allison.shrallow@lewisbrisbois.com joseph.appel@lewisbrisbois.com Berenice.Barragan@}ewisbrisboi8.com SERVICE BY ELECTRONIC TRANSMISSION ONLY: Service has been performed by e-mailing the document(s) to the persons at the e-mai} addresses listed above. During the Coronavirus (Covid~19) pandemic, this office may be using electronic mail for service of documents. No electronic message or other indication that the transmission was unsuccessful was received within a reasonabie time after the transmission. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 2, 2021, at San Jose, California. Maryib'én‘ Sftéver PROOF OF SfiRVICE