Filed 1/8/15 Wang v. Murray Co. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


QIZHAO CHARLES WANG,                                                 B251749

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC481607)

         v.

MURRAY COMPANY, INC.,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Maureen
Duffy-Lewis, Judge. Reversed and remanded.
         The Schlehr Law Firm, Sarah B. Schlehr and Morgan Ricketts for Plaintiff and
Appellant.
         Manning & Kass, Ellrod, Ramirez, Trester LLP, Scott Wm. Davenport and John
M. Cowden for Defendant and Respondent.
       Plaintiff Qizhao Wang (Wang) sued his former employer Murray Company, Inc.
(Murray) in connection with the termination of his employment. The original complaint
alleged causes of action for wrongful termination in violation of public policy based on
Wang’s filing of a workers’ compensation claim, for violation of Labor Code section
1102.5, and for intentional infliction of emotional distress.
       After the Third District Court of Appeal ruled in Dutra v. Mercy Medical Center
Mt. Shasta (2012) 209 Cal.App.4th 750 that the Labor Code provision prohibiting
termination of an employee for filing a workers’ compensation claim cannot support a
wrongful termination action, Wang retained new counsel, who sought to amend the
complaint to state causes of action under the Fair Employment and Housing Act,
Government Code section 12900 et seq. (“FEHA”), based on the same essential factual
allegations. The trial court denied Wang’s request, ruling that he had not demonstrated
good cause for the amendment. Because the complaint failed to state a cause of action,
Wang did not oppose Murray’s motion for summary judgment.
       Wang appeals the judgment subsequently entered, challenging only the denial of
his motion for leave to amend. We conclude that the trial court erred in denying that
motion, and so reverse the judgment.


                     FACTUAL AND PROCEDURAL SUMMARY
       Murray hired Wang in June of 2008 to work as an engineer at an annual salary of
$78,000. In November 2010, after Wang injured his back while on the job, he filed a
claim for workers’ compensation benefits. Temporarily unable to work due to his back
injury, Wang was initially out on sick leave from November 22 to December 5, 2010, and
again from May 4 to May 8, 2011 and from May 16 to May 25, 2011. Wang alleged that
he was removed from major projects that he had worked on, and was instead assigned
small, trivial projects not consonant with his level of experience or seniority with the
company. Newly hired engineers with less seniority were assigned projects to which
Wang would have been assigned in the past, but was no longer asked to work on. Wang
was originally included in a list of employees slated to attend a two-day solar system

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design training seminar in Reno, Nevada. During a June 12, 2011 meeting at which the
subject of the training seminar arose, Wang’s supervisor, Tim Allinson, announced that
Wang would not attend the seminar but would be replaced by another employee, because
the trip “might trigger [his] back problem.”
       The following month, Wang was summoned to a meeting with the Director of
Human Resources, Supervisor Allinson and others. Allinson “proceeded to make false
statements about [Wang’s] work product and capability, to which [Wang] verbally
disagreed. At the conclusion of the meeting, Mr. Wang was advised that his employment
with Murray Construction was terminated.”
       On March 26, 2012, Wang’s prior counsel filed a lawsuit on his behalf alleging
wrongful termination in violation of public policy based on Wang’s filing of a workers’
compensation claim; violation of Labor Code section 1102.5, subdivision (c);1 and
intentional infliction of emotional distress. Wang’s previous counsel took no steps to file
any claims under FEHA, or to obtain the required right to sue letter from the Department
of Fair Employment and Housing. However, Wang undertook to do so on his own, filing
a timely complaint with that department on June 25, 2012. His right to sue letter was
issued that day.
       Dutra v. Mercy Medical Center Mt. Shasta, supra, 209 Cal.App.4th 750 was filed
on September 26, 2012. An earlier opinion of our Supreme Court, Miklosy v. Regents
(2008) 44 Cal.4th 876, 902, had held that the exclusive remedy of workers’ compensation
applies to any emotional distress injury resulting from conduct occurring at the workplace
in the normal course of the employer-employee relationship. Thus, Wang’s complaint, as

1
        Labor Code section 1102.5, subdivision (c) probihits employers from retaliating
“against an employee for refusing to participate in an activity that would result in a
violation of state or federal statute . . . .” The complaint alleged that Wang was “refusing
to participate in workplace activity (refraining from seeking worker[s’] compensation
benefits) that would have resulted in a violation of Labor Code section 132a and related
worker[s’] compensation laws.” As Murray asserted in its motion for summary
judgment, this cause of action was “a roundabout way of asserting another claim for
wrongful termination under Cal. Lab. Code § 132a.”

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pled, was not viable. On December 6, 2012, Murray filed a motion for summary
judgment based, among other things, on Dutra v. Mercy Medical Center Mt. Shasta,
supra, 209 Cal.App.4th 750. The hearing on that motion was continued to, and
ultimately heard on, August 2, 2013.
       On March 21, 2013, Wang’s current counsel substituted in as counsel of record.
On April 29, 2013, Wang filed a motion for leave to amend which proposed to amend the
complaint by, among other things, removing all three claims pleaded in the initial
complaint and adding FEHA-based causes of action for disability discrimination, failure
to accommodate, and retaliation for taking protected leave.
       The motion was argued and taken under submission on June 10, 2013. The court
issued its minute order denying the motion that same day.
       As noted above, Wang did not oppose the motion for summary judgment;
judgment was entered against him on August 7, 2013.
       Wang timely filed his notice of appeal. He challenges the trial court’s denial of
his motion for leave to amend the complaint to allege viable causes of action under
FEHA.


                                       DISCUSSION
       As a preliminary matter, we address two procedural issues which Murray submits
require affirmance of the judgment without consideration of the merits: the adequacy of
the record on appeal and Wang’s decision not to oppose the Motion for Summary
Judgment.
       We begin with the appellate record. “[A] fundamental rule of appellate review is
that an appealed judgment or order is presumed correct. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) ‘“All intendments and presumptions are indulged to support
[the judgment] on matters as to which the record is silent, and error must be affirmatively
shown. . . . [Citations.]”’ (Ibid.) To overcome this presumption, the appellant must
provide an adequate appellate record demonstrating error. (Maria P. v. Riles (1987) 43


                                             4
Cal.3d 1281, 1295.)” (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229
Cal.App.4th 635, 643-644.)
       Murray maintains that the record here is inadequate because Wang “has failed to
present any admissible testimony regarding the arguments which were presented either at
the hearing on the motion for leave to amend or at the hearing on the motion for summary
judgment.” Wang answers that its claim of error is not dependent on or otherwise
affected by any argument presented at the unreported hearings before the trial court. It
argues, rather, that the court explicitly applied the wrong legal standard in ruling on the
challenged motion. Because we decide questions of law de novo without regard to the
trial court’s stated reasons, a transcript of the oral proceedings before the trial court is not
necessary to our review of the trial court’s ruling.
       Here, Wang does not rely on a silent record to establish error, but purports to
affirmatively show that the trial court’s stated reason for denying his request for leave to
amend was legally infirm. Murray nevertheless asserts that “it is entirely possible that
discussions and arguments were made at the hearing [which] impacted the outcome of the
trial court’s exercise of its discretion.” However, Murray opposed Wang’s attempt to
present that very evidence to this court.2 That is to say, Murray implies that if only we
knew what really happened in the trial court, we would reject Wang’s appeal on the
merits, but also opposed Wang’s attempt to bring that evidence before us. Either the oral
proceedings included “discussions and argument [which] impacted the outcome of the
trial court’s exercise of discretion” which would be reflected in a settled statement, or no
such discussions and argument transpired, in which case a settled statement or transcript
of the proceedings would be unhelpful to our review. Murray cannot have it both ways
by insisting that the proceedings before the trial court included statements which
supported the court’s exercise of discretion, and then thwart Wang’s efforts to present
this supposedly key evidence.

2
       On our own motion, we take judicial notice of Wang’s application for permission
to prepare a settled statement and Murray’s opposition thereto, each contained in the trial
court file. (Evid. Code, §§ 452, 459.)
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       Murray also claims that Wang waived his right to challenge the trial court’s ruling
denying leave to amend by failing to oppose the motion for summary judgment. Murray
cites no case in support of the contention, and we know of none. Rather, the Code of
Civil Procedure specifies that an intermediate ruling, such as the denial of the motion for
leave to amend, although not itself appealable is reviewable upon appeal from the final
judgment. (Code Civ. Proc., §§ 904.1, 906.)
       We turn now to the merits of Wang’s appeal. In its minute order denying the
motion for leave to amend, the trial court stated that Wang’s “[p]revious failure to file a
timely FEHA claim and subsequent failure to allege FEHA claims is not good cause.”
Plaintiff maintains that “good cause” is not a proper basis for a trial court to exercise its
discretion on a motion for leave to amend. Rather, he contends that the legal standard for
determining whether to grant leave to amend is timeliness and lack of prejudice. He
further maintains that he established that the motion to amend was timely and would not
prejudice defendant. Plaintiff therefore concludes that the trial court abused its discretion
in denying his motion.
       “Motions for leave to amend are directed to the sound discretion of the judge:
‘The court may, in furtherance of justice and on any terms as may be proper, allow a
party to amend any pleading. . . .’ (Code Civ. Proc., § 473, subd. (a)(1).) However, the
court’s discretion will usually be exercised liberally to permit amendment of the
pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998)
61 Cal.App.4th 581, 596.) The policy favoring amendment is so strong that it is a rare
case in which denial of leave to amend can be justified. (Douglas v. Superior Court
(1989) 215 Cal.App.3d 155, 158.) ‘Leave to amend should be denied only where the
facts are not in dispute, and the nature of the plaintiff’s claim is clear, but under
substantive law, no liability exists and no amendment would change the result.’
(Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180.)” (Howard v. County of
San Diego (2010) 184 Cal.App.4th 1422, 1428.) Indeed, “[o]n a motion for summary
judgment ‘“[w]here the complaint is challenged and the facts indicate that a plaintiff has
a good cause of action which is imperfectly pleaded, the trial court should give the

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plaintiff an opportunity to amend.”’ (Soderberg v. McKinney (1996) 44 Cal.App.4th
1760, 1773.)” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263,
1280.) “If the 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[,] and where the
refusal also results in a party being deprived of the right to assert a meritorious cause of
action . . . it is not only error but an abuse of discretion.” (Morgan v. Superior Court
(1959) 172 Cal.App.2d 527, 530.)
       In support of the trial court’s exercise of discretion in this case, defendant cites
two cases, Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118 and Record v. Reason
(1999) 73 Cal.App.4th 472, in which the trial courts’ denial of motions to amend were
affirmed on appeal.
       In Bedolla v. Logan & Frazer, supra, 52 Cal.App.3d 118, the cross-complainant
moved to amend his cross-complaint to conform to proof following trial. Said the court:
“the cross-complaint was filed on August 12, 1969, appellant did not move to amend it
until February 6, 1973, the fourth day of the trial, and even then it failed to offer any
excuse for the tardiness of its application. The law is well settled that a long deferred
presentation of the proposed amendment without a showing of excuse for the delay is
itself a significant factor to uphold the trial court’s denial of the amendment.” (Id. at
p. 136; see also Nelson v. Specialty Records, Inc. (1970) 11 Cal.App.3d 126, 139 [“A
long (five-year) unexcused delay may be the basis for denying permission to amend
pleadings”].)
       In Record v. Reason, supra, 73 Cal.App.4th 472, the plaintiff was injured when he
fell off an inner tube while being towed behind a motor boat. He sued the boat’s driver
for negligence. The trial court granted summary judgment for the defendant based on
primary assumption of the risk, and denied the plaintiff’s request to amend the complaint
to allege a claim of intentional or reckless conduct based on his declaration that he had
asked the defendant to drive the boat slowly since this was his first time on this particular
type of tube. The Court of Appeal affirmed the trial court’s denial of leave to amend,
stating, “Although [the defendant] may have intended the actions he undertook in

                                              7
maneuvering the boat, there is no evidence that he intended to throw [the plaintiff] into
the water and cause him to injure his back. Nor was this consequence so inevitable as to
transform [the defendant’s] actions in maneuvering the boat from negligence to
recklessness.” (Id. at p. 486.) Thus, the court concluded that the proposed amendment
did not allege a viable claim. (Ibid.; see also Edwards v. Superior Court (2001) 93
Cal.App.4th 172, 180 [“Leave to amend is properly denied when the facts are undisputed
and as a substantive matter no liability exists under the plaintiff’s new theory”].)
       Here, there was no long unexplained or unwarranted delay as in Bedolla v. Logan
& Frazer, supra, 52 Cal.App.3d 118, nor did the proposed amendment allege additional
facts which failed to state a cause of action as in Record v. Reason, supra, 73 Cal.App.4th
472. Rather, the complaint was filed on March 26, 2012, alleging causes of action for
wrongful termination in violation of the Labor Code and intentional infliction of
emotional distress. On September 26, 2012, the Third District Court of Appeal filed
Dutra v. Mercy Medical Center Mt. Shasta, supra, 209 Cal.App.4th 750, which
invalidated Wang’s wrongful termination claims. On December 6, 2012, defendant
brought a motion for summary judgment, contending that, pursuant to the holding of
Dutra v. Mercy Medical Center Mt. Shasta, supra, plaintiff was barred from bringing
causes of action based on violations of the Labor Code, and further contending that the
complaint failed to state a cause of action for intentional infliction of emotional distress.
Wang obtained new counsel, who promptly sought leave to amend the complaint to
allege facts which stated causes of action under FEHA. Moreover, the FEHA-based
claims were timely brought, as Wang had obtained a right to sue letter from the
Department of Fair Housing and Employment on June 25, 2012, less than a year prior to
the hearing on the motion.
       In its opposition to the motion for leave to amend, Murray argued that it would be
substantially prejudiced by grant of the motion, citing “yet another lengthy delay of the
pending trial date” and the “great expense” of conducting “fresh discovery on a new set
of claims.” It conceded, however, that the case was barely a year old and acknowledged
that Wang specifically disclaimed any need to continue the trial date. Generally

                                              8
speaking, prejudice cannot be shown where “the same set of facts support merely a
different theory.” (City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.) Murray
fails to explain why its completed discovery would not be useful in defending the
amended complaint which alleges the same essential facts as the original complaint but
seeks relief under different legal theories. In any event, Murray cites no case which
supports its assertion that the expense of defending a lawsuit constitutes prejudice
sufficient to deny a timely-brought motion to amend.
       In sum, under the circumstances of this case, including the lack of demonstrable
prejudice to Murray, the strong judicial policy of liberality in the granting of leave to
amend requires that Wang be permitted to amend his complaint to allege causes of action
under FEHA.


                                       DISPOSITION
       The judgment is reversed and the matter is remanded for further proceedings
consistent with this opinion. Consistent with this disposition, Murray’s motion for
sanctions is denied.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                             GOODMAN, J.
We concur:



       TURNER, P.J.



       KRIEGLER, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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