Summary
In Thompson v. George DeLallo Co., Civ. No. S-12-1058 LKK CMK, 2013 WL 211204, at *4-6 (E.D. Cal. Jan. 16, 2013), the defendant argued that leave to amend to add plaintiff's employer was improper because the plaintiff had received numerous documents indicating that defendant was a fictitious business name for the employer and thus the plaintiff should have known it was not suing the proper party.
Summary of this case from Harris v. Chipotle Mexican Grill, Inc.Opinion
NO. CIV. S-12-1058 LKK/CMK
01-15-2013
KEVIN J. THOMPSON, Plaintiff, v. GEORGE DELALLO CO., INC. dba EHMANN OLIVE CO., DOES 1 through 100, inclusive, Defendants.
ORDER
Plaintiff Kevin J. Thompson has sued his former employer, Ehmann Olive Co., alleging discrimination on the basis of race under the California Fair Employment and Housing Act, Cal. Gov't. Code sec. 12900 et seq. ("FEHA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII").
Plaintiff brings this motion to amend his complaint in order to substitute the name of defendant George DeLallo Co., Inc. d/b/a Ehmann Olive Co. with proposed defendant DeLallo Italian Foods, Inc. d/b/a Ehmann Olive Co.
The motion came on for hearing on January 14, 2014. Having considered the matter, for the reasons set forth below, the court will grant Thompson's motion to amend.
I. BACKGROUND
A. Factual Background
The following undisputed facts are taken from the operative complaint and the parties' filings in support of, and in opposition to, this motion.
On October 31, 2011, plaintiff was terminated from his employment with Ehmann Olive Co. in Oroville, California. (Declaration of Larry L. Baumbach in Support of Motion to Amend Complaint ("Baumbach Dec."), Ex. A, ECF No. 14-2.) "Ehmann Olive Co." is a fictitious business name. On January 9, 2012, plaintiff filed a charge of discrimination with the California Department of Fair Employment and Housing ("DFEH") against "GEORGE DELLALO, CO., INC. AKA EHMANN OLIVE, CO." (Id.) The DFEH charge alleges:
I WAS CALLED [N****R] FREQUENTLY. MY COMPLAINTS WERE NOT INVESTIGATED OR FOLLOWED-UP. I WAS DENIED RAISES OROn January 9, 2012, DFEH issued plaintiff a right-to-sue letter. (Baumbach Dec., Ex B.) Ehmann Olive Co.'s Oroville address is listed in the DFEH charge, and is printed on the right-to-sue letter. (Id.)
PROMOTIONS WHILE LESS SENIOR EMPLOYEES WERE GIVEN JOBS AND RAISES. I WAS REQUIRED TO TRAIN LESS SENIOR EMPLOYEES WHO WERE THEN PROMOTED OR GIVEN RAISES OVER ME. MY SUPERVISOR CONTINUALLY RIDICULED ME. ON 10/31/11 I WAS "LAID OFF" BECAUSE "IT WAS SLOW" ALTHOUGH THERE HAVE BEEN SEVERAL NEW HIRES SINCE THEN. (Id.)
On January 10, 2012, plaintiff filed a charge of discrimination with the federal Equal Employment Opportunity Commission against "George Delallo Co., Inc. aka Ehmann Olive Co." containing substantially the same allegations as the DFEH charge. (Complaint, Ex A., ECF No. 2.) A response from the EEOC states that a copy of the charge "will be served on the respondent[.]" (Id.) On January 31, 2012, the EEOC issued plaintiff a Notice of Right to Sue, cc:ing both Ehmann Olive Co.'s Oroville address and plaintiff's counsel, Larry Baumbach, on the letter. (Complaint, Ex. B.)
On April 23, 2012, plaintiff filed his complaint, naming as a defendant "George DeLallo Co., Inc. dba Ehmann Olive Co."
That same day, plaintiff's counsel mailed the summons and complaint to defendant's agent for service of process, along with a waiver of service of summons. (Baumbach Dec. ¶ 5, Ex D.) Defendant's counsel, S. Craig Hunter, responded with a letter, dated May 21, 2012, disputing plaintiff's claims (Baubach First Dec. ¶ 6, Ex. E.) The letter includes specific, detailed allegations of plaintiff's misconduct while employed, and summarizes these allegations by arguing that plaintiff's "poor work ethic, insubordination towards female supervisors, violation of plant safety rules, and gross misconduct towards both male and female employees warranted termination for cause." The letter claims that "DeLallo not only is entitled to discovery of all of Thompson's physical and mental health records, but also to an examination . . . by DeLallo's experts." It goes on to provide that "DeLallo shall interview Stephanie Hobbs regarding Thompson's character, work history, state of mind and attitude towards his employer . . . ." The letter makes no mention of the fact that defendant did not employ plaintiff.
Defendant ultimately signed the waiver of service (ECF No. 6), and on June 4, 2012, filed a pretrial scheduling report (ECF No. 7.) The report also fails to mention that defendant was not plaintiff's employer, instead repeatedly averring that, "Defendant DeLallo has been served only recently and, consequently, still is in the early stages of its investigation of the claims alleged in the complaint." The pretrial scheduling conference was held on June 18, 2012, with counsel for both parties participating. The scheduling order issued on June 20, 2012. (ECF No. 12.)
Defendant filed its answer on June 25, 2012. (Answer, ECF No. 13.) The answer denies nearly every allegation of the complaint, including that defendant was plaintiff's employer. Defendant alleges a number of standard affirmative defenses such as unclean hands and failure to mitigate damages, and also repeatedly asserts that plaintiff was terminated for good cause. Two affirmative defenses are of note. According to the sixteenth affirmative defense, "Plaintiff has misjoined defendant DeLallo as a party in the instant action and, accordingly, the instant action should be ordered dismissed as against defendant DeLallo." (Id. at 9.) Defendant's seventeenth affirmative defense asserts, "Defendant DeLallo is not, and never has been, Plaintiff's employer, and, as a consequence, is not liable for any of the claims asserted by Plaintiff in his complaint." (Id.)
On September 7, 2012, defendant's attorney Hunter sent plaintiff's attorney Baumbach a letter reading in pertinent part:
In the seventeenth affirmative defense contained in the answer . . . DeLallo expressly states that it is not, and never has been, plaintiff Kevin Thompson's employer. In its initial disclosures, DeLallo again states that plaintiff Thompson is not, and never has been, an employee of DeLallo . . . . Even a cursory examination of Thompson's IRS Form W-2 Statement discloses that DeLallo is not Thompson's employer. Therefore, DeLallo demands that the above-entitled lawsuit be dismissed immediately. (Baumbach Dec., Ex. F.)ccording to Baumbach, this letter "led to further investigation of DeLallo/Ehmann Olive Co. and it was determined that the correct name of the defendant should be DeLallo Italian Foods, Inc. dba Ehmann Olive Co." (Baumbach Dec. ¶ 8.) Baumbach references a document entitled "Fictitious Business Name Detail - Butte County Recorder's Office," identifies "DeLallo's Italian Foods Inc." as the registrant for the business name "Ehmann Olive Company." (Baumbach Dec., Ex. G.) On September 10, 2012, Baumbach sent Hunter a letter providing in pertinent part:
I am in receipt of your letter . . . . I am somewhat troubled by your insistence of the correctness of your assertion that George DeLallo Company, Inc. has nothing to do with DeLallo's Italian Foods, Inc. or Ehmann Olive Company. Our research records indicate that Ehmann Olive Company also does business as DeLallo Italian Foods, George DeLallo Company, Inc. [sic] Are you suggesting that there is no connection between the entities named in our research? Based upon your representations, we would be willing to enter a stipulation substituting the Defendant DeLallo's Italian Foods Inc. dba Ehmann Olive Oil Company and dismissing the George DeLallo Company, inc. without prejudice in case it should later be shown that your representations are inaccurate. (Baumbach Dec., Ex. H.)On October 19, 2012, Hunter responded with a letter refusing to enter into such a stipulation, insisting, first, that any dismissal of George DeLallo Co., Inc. would have to be with prejudice, and second, that the pretrial scheduling order prohibits joinder of parties or amendment to pleadings on the parties' stipulation. (Baumbach Dec., Ex. I.)
Plaintiff filed the instant motion on November 14, 2012. (ECF No. 14.) In opposition, defendant has filed declarations from Philip M. Polsinelli (defendant's Executive Vice President, ECF No. 15-1), Anthony DiPietro (DeLallo's Italian Foods, Inc.'s secretary, ECF No. 15-2), and George Hoag (DeLallo's Italian Foods, Inc.'s Director of Operations at the Oroville plant where plaintiff was employed, ECF No. 15-3). Defendant alleges that:
• Defendant and DeLallo's Italian Foods are both privately-held corporations. Neither the defendant nor DeLallo's Italian Foods own stock in one another, and there is no parent-subsidiary relationship between the defendant and DeLallo's Italian Foods. (Opposition at 4, 5, ECF No. 15; Polsinelli Dec. ¶¶ 4-5; DiPietro Dec. ¶¶ 5-6.)
• "The sole business purpose of DeLallo's Italian Foods, which also operates in the State of California under the 'dba' of the Ehmann Olive Company, has been the ownership and operation of the olive processing plant in Oroville, CA." (DiPietro Dec. ¶ 4.)
• Plaintiff was employed by DeLallo's Italian Foods at its Oroville plant from August 3, 2010 until October 31,
2011. (Opposition at 5; DiPietro Dec. ¶ 10.)
• A number of employment-related documents identity DeLallo's Italian Foods, Inc. as plaintiff's employer, including three corporate documents signed by plaintiff on his hire date, his 2010 and 2011 IRS Form W-2, his layoff notice dated October 31, 2011, and his final paycheck. (Hoag Dec, Exs. B - H.) Several of these documents (a corporate safety manual, the layoff notice, and the final paycheck) clearly display the name "DeLallo Italian Foods, Inc. dba Ehmann Olive Company."
• Defendant's initial Rule 26 disclosures, served on July 24, 2012, identify Philip M. Polsinelli as an individual likely to have discoverable information regarding "[t]he lack of employment relationship, at any time, between plaintiff Kevin J. Thompson and defendant George E. DeLallo Co., Inc." (Declaration of S. Craig Hunter in Opposition to Motion to Amend Complaint, Ex. D, ECF No.
15-4.) The disclosures also provide that "Defendant DeLallo contends that plaintiff Kevin J. Thompson is not, and never has been, an employee of defendant George E. DeLallo Co., Inc." (Id.)
Plaintiff counters with the following:
• Plaintiff's attorney Baumbach found a website, at http://www.delallo.com/california-sevillano-olives-greener-ever, written by one George Hoag (the name of one of defendant's declarants, supra, and allegedly an employee of DeLallo Italian Foods, Inc.). The bottom of the webpage includes contact information for "George E. DeLallo Co., Inc." The printout of the website filed by plaintiff is dated November 1, 2012. (Declaration of Larry Baumbach in Support of Reply to Opposition ("Baumbach Reply Dec.," ¶ 4, Ex. 2, ECF No. 17.)
• Plaintiff noticed, and twice rescheduled, the deposition of George Hoag. On December 17, 2012 (five days after the date on which Hoag signed his declaration in support of defendant's opposition), defendant's attorney Hunter arrived at the time and place at which the deposition was scheduled, and announced that Hoag was out of state and would not be attending. (Baumbach Reply Dec. ¶ 5.)
• Printouts of documents from the Pennsylvania Department of State show defendant and DeLallo Italian Foods, Inc. to both be located at 101 Lincoln Highway East, Jeannette PA 15644, and to have identical corporate
officers. Two of these officers are defendant's declarants, Anthony DiPietro and Philip Polsinelli. (Baumbach Reply Dec. Ex. 4.)
Defendant also points to the U.S. Citizenship and Immigration Services Form I-9, "Employment Eligibility Verification," signed by both plaintiff and the plant manager at the Oroville facility. (Hoag Dec., Ex. A) However, the name "DeLallo Italian Foods, Inc." is handwritten on this form, and there is nothing to suggest that this portion of the form was completed before plaintiff signed it, or that the completed copy was delivered to plaintiff.
Defendant also alleges that DeLallo Italian Foods (rather than George DeLallo Co., Inc.) received a notice from the California Employment Development Dept., dated November 10, 2011, regarding plaintiff's unemployment insurance claims, but this does not conclusively demonstrate that plaintiff knew that DeLallo Italian Foods was his employer, as EDD may have had the information linking plaintiff's name to his correct employer.
The court now turns to the parties' legal arguments in support of their positions.
II. STANDARD
In support of his motion, plaintiff cites Fed. R. Civ. P. 15(a)(2), which provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Plaintiff argues that this motion is necessitated by defendant's refusal to stipulate to the amendment. But as the scheduling order has issued in this matter, plaintiff should have brought a motion to amend the scheduling order under Rule 16. The scheduling order clearly provides: "No further joinder of parties or amendments to pleadings is permitted except with leave of court, good cause having been shown. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992)." This order issued and took effect on June 20, 2012.
Hereinafter, the term "Rule" refers to the applicable Federal Rule of Civil Procedure.
The court nevertheless has discretion to treat a motion to amend a pleading under Rule 15 as a motion to amend the scheduling order under Rule 16, and will do so. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).
Under Rule 16(b), a scheduling order "must limit the time to join other parties [and] amend the pleadings," and "may be modified only for good cause and with the judge's consent." In order to establish good cause, the moving party must show that, despite the exercise of diligence, it could not reasonably have met the scheduling order deadline. Johnson, 975 F.2d at 609.
Good cause may be found to exist where the moving party shows that it diligently assisted the court with creating a workable scheduling order, that it is unable to comply with the scheduling order's deadlines due to matters that could not have reasonably been foreseen at the time of the issuance of the scheduling order, and that it was diligent in seeking an amendment once it became apparent that the party could not comply with the scheduling order. Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D.Cal. 1999) (Burrell, J.); Hood v. Hartford Life and Acc. Ins. Co., 567 F.Supp.2d 1221, 1224 (E.D.Cal. 2008) (Damrell, J.).
Defendant argues that "good cause" should be equated with "excusable neglect." But the cases he cites in support of this proposition do not define the term under Rule 16. U.S. v. Kenner General Contractors, Inc., 764 F.2d 707 (9th Cir. 1985), McDonald v. United States, 898 F.2d 466 (5th Cir. 1990), Boudette v. Barnett, 923 F.2d 754 (9th Cir. 1991), In re Sheehan, 253 F.3d 507 (9th Cir. 2001), and Cox. v. County of Yuba, No. 2:09-cv-01894, 2011 WL 590733 (E.D.Cal. 2011) all concern good cause for improper service under Rule 4.
Once the moving party has demonstrated good cause under Rule 16, then the court turns to Rule 15 to determine whether the amendment sought should be granted. Johnson, 975 F.2d at 608. "[L]eave to amend [under Rule 15] should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates an undue delay." Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997), overruled on other grounds by Green v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir. 2001).
III. ANALYSIS
A. Has plaintiff established good cause for amendment under Rule 16?
1. Assistance in creating a scheduling order
The court must first determine whether plaintiff diligently assisted the court in creating a workable scheduling order. Plaintiff has met that standard. He timely served process on the presumed defendant, and filed a status report addressing the issues raised in the court's Order Setting Status (Pretrial Scheduling) Conference. (ECF No. 4.)
It appears to the court that, between early January, when he filed his FEHA charge, and early September, when his attorney wrote defense counsel, plaintiff sincerely believed that he had sued the correct party.
In truth, if there is any fault in plaintiff's counsel's understanding, it lies with defendant, which failed to inform the court that plaintiff may have sued the wrong party. The court's Order specifically directs the parties to set out their views on "[a]ny other matters which may be conducive to the just, efficient, and economical determination of the action." (Id. at 5.) There are few matters more conducive to a "just, efficient, and economical determination" than ensuring that the proper parties are present in the action. Defendant filed its status report on June 4, 2012, participated in the scheduling conference on June 18, and filed its answer on June 25. Defense counsel's letter, dated September 7, 2012, makes much of its affirmative defense that "Defendant DeLallo is not, and never has been, Plaintiff's employer, and, as a consequence, is not liable for any of the claims asserted by Plaintiff in his complaint." But there are no facts before the court to suggest that defendant only learned it was not plaintiff's employer in the week between the status conference and the filing of its answer.
2. Foreseeability of the need for amendment
Plaintiff must next demonstrate that it could not have reasonably foreseen the need for amendment at the time the scheduling order issued. This is the key issue at dispute. Defendant argues that plaintiff was careless in failing to properly identify DeLallo's Italian Foods as the real party in interest. As the Ninth Circuit has noted, "carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Johnson, 975 F.2d at 609. Plaintiff received several documents showing that "Ehmann Olive Co." is a fictitious business name for DeLallo's Italian Foods, including a corporate safety manual, his layoff notice, and his final paycheck. Plaintiff's counsel, however, could have searched the on-line fictitious business name listings in Butte County long before he actually did.
At oral argument, plaintiff's counsel asserted that, at the time he was retained, plaintiff was homeless and did not have any paperwork.
On the other hand, these errors must be balanced against defendant's conduct. Defense counsel's May 21, 2012 letter contains extensive detail about plaintiff's employment, asserts that defendant will vigorously defend against the lawsuit, and gives no hint that defendant was not plaintiff's employer, all of which suggested the plaintiff had the proper defendant. Moreover, defendant made no mention to the court that it was not a proper party to this lawsuit in either its status conference report or at the status conference. While defendant's Answer both denies that defendant is plaintiff's employer and includes this assertion as an affirmative defense, the answer contains a number of other denials and defenses that are entirely consistent with defendant employing plaintiff. Interpreting defendant's actions in the light most favorable to it (i.e., assuming that defendant was not trying to actively mislead plaintiff and the court), it seems that defendant itself was confused for several months about whether it was plaintiff's employer.
Moreover, George DeLallo Co., Inc. and DeLallo's Italian Foods, Inc. appear to be closely-related entities. Beyond the obvious similarities in their names, information from the Pennsylvania Department of State indicates that the firms are located at the same business address and have the same corporate officers. A website featuring an article by a manager at the Oroville facility bears the name "George E. DeLallo Co., Inc." Defendant's opposition to this motion is accompanied by the declarations of two officers of George DeLallo Co. and one employee of DeLallo's Italian Foods, indicating some degree of cooperation between the firms. And, ultimately, if the two are as distinct as defendant maintains, why would defendant oppose this motion? Plaintiff is seeking to substitute DeLallo's Italian Foods for George DeLallo Co. as a defendant, which would presumably relieve the latter of liability.
It therefore appears to the court that plaintiff could not have reasonably foreseen the possibility that it had sued the wrong defendant at the time the scheduling order issued.
In reaching this conclusion, the court is guided by several other decisions assessing whether good cause existed to amend a complaint.
In Stribling v. Concord Village, Inc., 2011 WL 3648280 (D.Ariz. Aug 19, 2011) (Teilborg, J.), an employment discrimination matter, the district court denied a motion to amend the complaint to name the correct defendant. Like the plaintiff herein, the Stribling plaintiff filed a discrimination charge with the EEOC against the incorrect defendant. But on receipt of the charge, the Stribling defendant promptly identified the correct defendant for the plaintiff. The defendant again informed the plaintiff (and the court) of this fact at the Rule 16 scheduling conference. Yet the plaintiff persisted in trying to hold the defendant liable under an agency theory, and only belatedly moved to amend to join the correct defendant. The court denied the motion as "inexcusably tardy." Although Stribling involved a pro se plaintiff, it is notable that the defendant did not seek to take advantage of this fact, and unlike the defendant herein, was prompt and forthright in disclosing the error both to the plaintiff and the court.
The instant case can also be distinguished from Johnson, 975 F.2d at 604. There, the scheduling order gave the parties a six month window in which to move to join additional parties, after which a showing of "extraordinary circumstances" would be required. Id. at 606. During the six month period, the defendant twice informed the plaintiff that it had sued the wrong party, both in interrogatory responses and in a letter in which it offered to stipulate to a substitution of the correct defendant. Plaintiff moved to amend only after the six months had expired; the appeals court affirmed the district's denial of this motion in light of the scheduling order. Again, the forthrightness of the Johnson defendant stands in marked contrast to the conduct of defendant herein.
This offer is particularly notable because the named defendant was a holding company which owned a majority of the stock in the correct defendant. Johnson, 975 F.2d at 606.
Finally, in Barrett v. Qual-Med, Inc., 153 F.R.D. 653 (D.Colo. 1994), another employment discrimination case, the plaintiff incorrectly sued the parent company rather than a subsidiary. The parent indicated this to the plaintiff only through a somewhat-ambiguous denial in its Answer. The district court granted the plaintiff leave to amend its complaint on the eve of trial, noting that, "the normal, and decent, procedure in situations such as this is to raise the matter by a telephone call notifying opposing counsel that she has sued the wrong entity, so that a correction can be made with a minimum of wasted time and expense." Id. at 655. The court endorses this sentiment.
Accordingly, the court finds that plaintiff could not have reasonably foreseen the need for amendment at the time the scheduling order issued.
3. Diligence in seeking amendment
The third factor showing good cause for amendment is plaintiff's diligence in seeking an amendment once he learned that he had named the wrong defendant. "'[G]ood cause' has been defeated by undue delay in moving to amend . . . ." Ultimax Cement Manufacturing Corp. v. CTS Cement Manufacturing, 587 F.3d 1339, 1354 (9th Cir. 2010). The court finds that defendant first unequivocally asserted that it was not plaintiff's employer on July 24, 2012, when it served its initial Rule 26 disclosures. Plaintiff's counsel performed a fictitious business name search and offered to stipulate to amend the complaint in early September. Defendant refused this offer on October 19, 2012, and plaintiff filed the instant motion on November 14, 2012. These dates indicate that plaintiff demonstrated sufficient diligence in seeking to amend the complaint once he learned he had sued the wrong defendant.
In sum, plaintiff has established the three factors necessary to show good cause for amending the complaint herein.
B. Is there any reason why leave to amend should not be granted under Rule 15(a)?
"[L]eave to amend [under Rule 15(a)] should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates an undue delay." Martinez, 125 F.3d at 785.
1. Prejudice to defendant
As the proposed amendment relieves defendant of liability by substituting another entity in its place, it would appear not to prejudice defendant.
2. Bad faith
Nothing suggests that plaintiff has acted in bad faith in seeking this amendment. He appears to have been honestly mistaken about his employer's true identity for a number of months, and once his counsel learned of the mistake, acted diligently to correct it.
3. Futility of amendment
Defendant implicitly argues amending the complaint would be futile because plaintiff's EEOC and FEHA charges, and the ensuing right-to-sue letters issued by the agencies, name "George DeLallo Co., Inc," rather than "DeLallo Italian Foods, Inc." as his employer.
Title VII and FEHA both require a prospective plaintiff to exhaust administrative remedies before commencing a civil action. Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990); Commodore Home Systems, Inc. v. Superior Court, 32 Cal.3d 211, 213-4 (Cal. 1982). In the present case, the statutory deadlines for plaintiff to file a charge with the EEOC and the DFEH against DeLallo Italian Foods have expired. Consequently, defendant argues, plaintiff has failed to exhaust his administrative remedies against DeLallo Italian Foods, and so is barred from naming it as a defendant in a civil action under Title VII and FEHA.
a. Adequacy of EEOC charge
Defendant appears to be incorrect where Title VII is concerned. While the general rule in the Ninth Circuit is that "Title VII claimants may sue only those named in the EEOC charge because only they had an opportunity to respond to charges during the administrative proceeding," Sosa, 920 F.2d at 1458, there are several exceptions to this rule. See Betsy Williams, When may person not named as respondent in charge filed with Equal Employment Opportunity Commission (EEOC) be sued under Title VII of Civil Rights Act of 1964, 121 A.L.R. Fed 1. One such exception is that "Title VII charges can be brought against persons not named in an EEOC complaint as long as they were involved in the acts giving rise to the EEOC claims." Sosa v. Hiraoka, 920 F.2d 1451, 1458-9 (9th. Cir 1990) (internal citations and quotation omitted). There is no dispute that DeLallo Italian Foods, as plaintiff's actual employer, was "involved in the acts" alleged in the EEOC charge. A second exception is that Title VII claimants may sue an unnamed party if facts are alleged in the charge "from which the court could infer that the unnamed party violated Title VII . . . ." Bernstein v. Aetna Life & Cas., 843 F.2d 359, 362 (9th Cir. 1988). Plaintiff's EEOC charge is brought against "George Delallo Co., Inc. aka Ehmann Olive Co." As the court is now well aware that "Ehmann Olive Co." is a fictitious business name for DeLallo Italian Foods, Inc., it can infer from the charge that the latter corporation is alleged to have violated Title VII. Based on these two exceptions, the court concludes that plaintiff may properly name DeLallo Italian Foods, Inc. as a defendant in this lawsuit despite having failed to name it in his EEOC charge.
b. Adequacy of FEHA charge
As for the FEHA charge, it must "state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of." Cal. Gov't. Code § 12960. California courts have consistently held that, in order to be named in a lawsuit under FEHA, a defendant must be named in the body or the caption of a DFEH charge. See Cole v. Antelope Valley Union High School District, 47 Cal.App.4th 1505, 1509-10 (Cal. Ct. App. 1996). To date, the California appellate courts have issued five published decisions which address whether, and in what circumstances, a FEHA claim may be asserted against a party not specifically identified in a DFEH charge: Medix Ambulance Service, Inc. v. Superior Court, 97 Cal.App.4th 109 (Cal.Ct.App. 2002) (sustaining demurrer as to two individuals not named in a FEHA charge despite plaintiff's allegation that they were the alter ego of a named party); Cole, supra, 47 Cal.App.4th at 1505 (allowing lawsuit to proceed against an individual named in the caption, but not the body, of FEHA charge, but not against two individuals nowhere named in the charge); Saavedra v. Orange County Consolidated Transportation Etc. Agency, 11 Cal.App.4th 824 (Cal.Ct.App. 1992) (allowing lawsuit to proceed against individual defendant described in the body of FEHA charge, though caption only named the employer); Martin v. Fisher, 11 Cal.App.4th 118 (Cal.Ct.App. 1992) (same); and Valdez v. City of Los Angeles 231 Cal.App.3d 1043 (Cal.Ct.App. 1991) (holding that lawsuit could not proceed against individuals not named in FEHA charge). None of these decisions is particularly on-point with the circumstances of this case, where the FEHA charge does not name the proper defendant, but does correctly identify the proper defendant's address and fictitious business name.
An unpublished decision featuring facts similar to those herein was issued by the California Court of Appeal for the Fourth Appellate District. In Martinez v. Louis Lau, Inc., 2002 WL 31772018 (Cal.Ct.App. 2002), the plaintiff filed a DFEH charge identifying her employer as "Pacific Market" and alleging age discrimination by three individuals. After filing suit, she determined that "Pacific Market" was a fictitious business name, originally for Louis Lau, Inc., and later for Lau Brothers, Inc. (The latter entity acquired the Pacific Market business shortly before plaintiff was terminated.) Louis Lau, one of the individuals named in the DFEH charge, was a shareholder and officer of both corporations. Plaintiff amended her complaint to name the two corporations as defendants and allege that "Pacific Market" was a fictitious business name under which they operated. The appeals court held that, despite failing to identify the two corporations in her DFEH charge, plaintiff could proceed with her lawsuit, reasoning that, "It should be self-evident that to the extent [plaintiff] stated a wrongful termination claim, she intended to charge as the wrongdoer the employer who had terminated her, whose dba she had identified and whose owner she had identified. It is disingenuous for Louis Lau, Inc. to claim its identity as employer as of [the date of termination] was unclear." Id. at *5. The appeals court also noted with approval that the plaintiff had provided the correct address for Pacific Market in her DFEH charge.
While this court is not bound by unpublished state decisions, it may consider them in its decision-making. See, e.g., Roe ex rel Callahan v. Gustine Unified School Dist., 678 F.Supp.2d 1008, 1042-43 (E.D.Cal.2009) (Wanger, J.) (citing two unpublished California appellate decisions — and several published opinions — in support of the court's interpretation of a California statute).
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Martinez is persuasive. While plaintiff herein did not identify an individual shareholder of DeLallo Italian Foods, Inc. in his DFEH charge, the charge properly identifies the fictitious business name of his employer and was mailed to the facility at which he was employed. This is sufficient to have put DeLallo Italian Foods on notice of plaintiff's allegations. As the Martinez court noted, "The function of an administrative complaint is to provide the basis for an investigation into an employee's claim of discrimination against an employer, and not to limit access to the courts. A strict rule would harm victims of discrimination without providing legitimate protection to individuals who are made aware of the charges through the administrative proceeding." Id. (quoting Martin, 11 Cal.App.4th at 122). Accordingly, the court finds that plaintiff has properly exhausted his administrative remedies under FEHA.
4. Undue delay
The operative scheduling order sets deadlines for discovery to be completed by August 18, 2013 and law and motion to be heard by October 18, 2013. Trial is currently set for April 22, 2014. While it is possible that the court will have to change these dates if DeLallo Italian Foods, Inc. is substituted in as a defendant, the litigation is at an early enough stage that no undue delay should be introduced.
To sum, having found that the proposed amendment would not cause prejudice to the defendant, is not being sought in bad faith, is not futile, and will not create undue delay, it appears that leave to amend should be granted under Rule 15(a).
C. Would the proposed amendment relate back to the original complaint under Rule 15(c)?
The sole question remaining, then, is whether the proposed amendment would relate back to the original complaint under Rule 15(c)(3), given that the statutes of limitation under Title VII and FEHA have run. "The purpose of relation back [is] to balance the interests of the defendant protected by the statute of limitations with the preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their merits." Krupski v. Costa Crociere S.p.A., 560 U.S. ___, 130 S.Ct 2485, 2494 (2010). Under Rule 15(c)(3), when an amendment to a complaint changes the party against whom a claim is asserted, the amendment relates back to the date of the original pleading if (i) the claim arises out of the conduct set out in the original pleading; and within 120 days of the filing of the complaint, the party to be brought in by the amendment (ii) "received such notice of the action that it will not be prejudiced in defending on the merits," and (iii) "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed. R. Civ. P. 15(c).
The facts of this case satisfy Rule 15(c)(3). Plaintiff's proposed First Amended Complaint (ECF No. 20) is identical to his original complaint, except that it names DeLallo Italian Foods, Inc., rather than George DeLallo Co., Inc., as defendant. The original complaint was filed on April 23, 2012; defendant's initial Rule 26 disclosures, served on July 24, 2012, identify Philip M. Polsinelli (defendant's Executive Vice President) as a person likely to have discoverable information about its defenses. As Mr. Polsinelli is also identified as an officer of DeLallo's Italian Foods, it appears that the latter entity had notice of this action within the 120 day period. Finally, given that plaintiff's FEHA and EEOC charges and right-to-sue letters were both sent to DeLallo Italian Foods' Oroville facility, the firm was on notice that plaintiff had mistakenly named George DeLallo Co. as his employer.
It therefore appears that the proposed amendment would relate back to the original complaint under Rule 15(c)(3).
IV. CONCLUSION
The court hereby orders as follows:
[1] Plaintiff's motion to amend the complaint in order to substitute DeLallo Italian Foods, Inc. d/b/a Ehmann Olive Co. for George DeLallo Co., Inc. d/b/a Ehmann Olive Co. as defendant is GRANTED.
[2] Plaintiff is DIRECTED to file his proposed First Amended Complaint within three (3) days after issuance of this order. Per Fed. R. Civ. P. 15(a), DeLallo Italian Foods, Inc. must file a responsive pleading within 14 days after service of the amended complaint.
IT IS SO ORDERED.
________________________
LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT