Kari Frances Gephart v. County of San Luis Obispo

Kari Frances Gephart v. County of San Luis Obispo, 23CV-0066

Hearing: Motion For Leave to File First Amended Answer

Date: August 19, 2026

On January 31, 2023, Kari Frances Gephart (Plaintiff) filed this action against her former employer County of San Luis Obispo (Defendant) alleging she was discriminated and retaliated against when she returned to work after maternity leave, complained about lax Covid-19 protocols, and requested accommodation for health issues. (Complaint, ¶¶ 13, 14.) Before the Court is Defendant’s motion to add a twenty-eighth affirmative defense based on Government Code section 855.4 which provides as follows:

(a) Neither a public entity nor a public employee is liable for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused.

(b) Neither a public entity nor a public employee is liable for an injury caused by an act or omission in carrying out with due care a decision described in subdivision (a).

Defendant served its answer on March 26, 2023, and did not seek to add the proposed affirmative defense until April 3, 2026 when it filed this motion. Plaintiff argues Defendant has not met its burden of showing when facts giving rise to the amendment were discovered and why the request was not made earlier. Plaintiff also argues the proposed defense is futile because Government Code section 855.4 does not apply to Plaintiff’s claims.

I.

Legal Standard

The Court may allow the amendment of any pleading at any time in the furtherance of justice, and upon such terms as may be proper. (Code Civ. Proc., §§ 473(a), 576.) Under Code of Civil Procedure section 473, subdivision (a)(1), a court has discretion to deny a motion for leave to amend where a proposed amendment is legally futile or where there has been inexcusable delay in making the motion. The Court’s discretion is to be exercised liberally to permit the amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If the motion is timely and does not prejudice the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)

II. Futility

Defendant filed its Answer on March 26, 2023, including the following affirmative defense, “[t]o the extent not previously stated, Defendant is immune from liability pursuant to the provisions of the California Government Code, including but not limited to, sections 815, 815.2, 818.6, 818.8, 820.2, 820.4, 820.8, 821.6, and 822.2; the provisions of the California Penal Code, including but not limited to, sections 836.5, 837, and 847; ....” (Answer, Twenty-Sixth Affirmative Defense.) Accordingly, the requested amendment is repetitive and appears unnecessary.

Plaintiff alleges she was in poor mental and physical health when she returned to work after maternity leave. (Complaint, ¶ 13.) She reported lax Covid-19 protocols, such as co-workers not wearing masks, to her superiors and was ignored. She alleges she was discriminated against and retaliated against for doing so and suffered panic attacks, eventually being diagnosed with severe anxiety. (Complaint ¶¶ 14, 15.) Plaintiff claims Defendant did not provide accommodation for her health conditions which were exacerbated by Defendant’s harassment, retaliation, and mistreatment. (Complaint, ¶¶ 16-20.)

Defendant cites the opinion in Allos v. Poway Unified Sch. Dist. (2025) 112 Cal.App.5th 822 (Allos), as creating the basis for the new defense. The facts in Allos are distinguishable. In Allos, the plaintiff returned to work from the Covid-19 shutdown and asked to continue working from home in order to avoid Covid. (Id. at pp. 826-827.) Defendant’s Covid policy was the basis of the claims.

In contrast, Plaintiff returned to work from maternity leave. Defendant allegedly denied Plaintiff’s requested accommodation to work remotely because Defendant placed her on a Performance Improvement Plan (PIP), and employees on a PIP were not permitted to work remotely. (Complaint, ¶ 20; Opposition, p. 7, lns. 3-4.) Defendant points to no allegation or evidence that a decision involving public health in the community is at issue in this case.

The holding in Allos is narrow, stating “to the extent Allos’s claims are based on [the defendant’s] decisions to allow employees to work from home and subsequently to require their return to in-office work, the claims are barred by the immunity afforded by section 855.4.” (Id. at 834 [emphasis added].) Thus, even if Defendant “has learned through depositions and written discovery that the true nature of Plaintiff’s complaint is related to her desire to work remotely because of her anxiety related to the possible transmission of the COVID-19 virus” (Motion, p. 2, lns. 4-6), section 955.4 does not appear to apply.

In its Reply Defendant argues the Seventh Cause of Action for Whistle Blower Retaliation renders the defense relevant. Not so. While Plaintiff alleges she was retaliated against for raising “several violations of law related to workplace safety, specifically laws related to Covid-19” (Complaint, ¶ 70), she seeks damages for the retaliation rather than the violations of law.

At this point Defendant has not shown that Government Code section 855.4 could provide a defense in this case, so the proposed amendment appears futile.

III. Inexcusable Delay

Defendant acknowledges that “[p]ursuant to California Rules of Court, rule 3.1324, subdivision (b),

A separate declaration must accompany the motion and must specify:

(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.” (Motion, p. 6, lns. 4-9.)

Defendant suggests, without citation to authority, that the determination of diligence starts anew each time a party changes legal counsel. The court disagrees. Defendant was represented by legal counsel for three years before changing counsel and former counsel asserted the immunity defense.

Plaintiff argues there is no evidence as to when the facts giving rise to the amended allegations were discovered or the reasons why the request for amendment was not made earlier. (Opposition, p. 5, lns. 13-16.) Defendant relies on the Declaration of Kelly A. Duncan (Duncan Dec.) as compliance with these requirements. Ms. Duncan declares as follows:

4. In March 2026, new handling attorneys were assigned to Defendant’s case. Upon review of the case file, including written discovery and deposition testimony, counsel determined that an additional affirmative defense could be asserted. Defendant now moves for leave to amend.

5. Defendant brings this motion immediately after ascertaining that grounds for the proposed affirmative defense exists. The proposed amendment is necessary and proper because Defendant will not otherwise be able to assert this affirmative defense to preserve its rights.

Here, the grounds Defendant asserts for the affirmative defense existed long before new counsel reviewed discovery and deposition testimony in March of 2026. Plaintiff asserts that “Written discovery was exchanged and verified in 2023. Plaintiff’s deposition proceeded in multiple volumes: Volume II was taken on August 28, 2024, Volume III on December 17, 2025, and Volume IV on May 5, 2026.” (Opposition, p. 4, lns. 4-6.)

There is no discussion in Ms. Duncan’s declaration as to why the request for amendment was not made earlier or why it is being made at all given former counsel had already asserted a broad Government Code immunity defense. There is no evidence Defendant’s extreme delay in seeking to add a more specific defense is excusable.

IV. Prejudice

Plaintiff claims she will be prejudiced if amendment is allowed because “she would need to take discovery she has never had reason to take: written discovery and a person-most-knowledgeable deposition concerning the County’s COVID-19 telework and return-to-work policies, who formulated them, what discretion was delegated and by what instrument, whether any policy was applied to Plaintiff at all, whether comparators were treated differently, and whether the County exercised due care in implementation.” (Opposition, p. 9, lns. 8-16.)

The parties could have, and presumably would have, conducted discovery into Defendant’s Covid policies had discovery disclosed Defendant’s conduct was based on Covid policies. In other words, discovery into Defendant’s Government Code immunity affirmative defense has been available throughout the litigation. If Plaintiff decides further discovery is needed that is her choice, but it does not constitute prejudice.

The case has not been set for trial and there is no discovery cut-off date. There is ample time for Covid policy discovery if a party deems it necessary.

V. Ruling

A court may not deny leave to amend where the opposing party was not misled or prejudiced by the amendment. (Berman v. Bromberg (1997) 56 Cal. App. 4th 936, 945.) Given the great liberality afforded amendments to pleadings and the fact Defendant has already asserted an allinclusive Government Code immunity affirmative defense, the motion for leave to file a First Amended Answer is granted. The parties should be prepared to discuss additional discovery costs resulting from the delayed addition of the Twenty-Eighth Affirmative Defense and whether Defendant should be required to pay the additional costs, if any.

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