Motion for Leave to Amend
“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(a)(1).) “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 or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)
The proposed FAC is attached to Plaintiff’s supporting declaration. That declaration also explains the effect of the proposed amendment, when the facts giving rise to the amendment became known, and why Plaintiff did not seek leave earlier.
Defendant argues the motion should be denied because Plaintiff has offered no explanation for the failure to seek leave to amend earlier, Plaintiff’s pattern of conduct shows bad faith and dilatory motive, and Defendant would be prejudiced if amendment is allowed by having to litigate a new and distinct theory.
Plaintiff’s counsel has explained that he was under the impression that leave was not required so long as he filed an amended complaint within 60 days of the PAGA notice maturing, which is a reasonable reading of Labor Code section 2699.3(a)(2)(C). Thus, Plaintiff attempted to file an amended complaint in May, shortly after his PAGA notice matured. After those attempted filings were rejected, Plaintiff requested that Defendant stipulate to the amendment. When defense counsel indicated that they would not stipulate on July 22, 2025, Plaintiff filed his first motion for leave to amend on August 11, 2025, which was denied for purely procedural deficiencies.
The Court finds no evidence of dilatory motive or delay in this procedural history. Further, Defendant has presented no evidence in support of its claim of prejudice, such as facts regarding the discovery performed thus far. Thus, the Court finds Defendant’s arguments unpersuasive.
In light of the above, the motion for leave to amend is GRANTED. Plaintiff to file and serve his amended complaint within 10 days of the date of this order.
The Court sets an Order to Show Cause why the case should not be transferred to Complex for August 13, 2026 at 1:30 p.m. In light of the new PAGA claim, the parties may stipulate to the transfer and the Court upon reviewing the stipulation and entering an order will vacate the August 13, 2026 hearing.
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Plaintiff to give notice. 108 Armstrong vs. DH Dental Employment Services, LLC, 25-01508012 Defendants DH Dental Employment Services, LLC, Kerr Corporation, and Envista Holdings Corporation (collectively, “Defendants”), move this Court for an order (i) compelling arbitration of Plaintiff David Armstrong’s (“Plaintiff”) claims against Defendants, and (ii) dismissing, or in the alternative staying, further proceedings in this Court pending resolution of this motion and completion of arbitration.
Plaintiff started as a Business Analyst in 2010 for Defendants. (Complaint¶9.) Defendant employer asserts that it rolled out a Dispute Resolution Agreement (“DRA”) in “on or around September of 2022 using the Workday system”. (Decl. of Herold¶4.) The DRA allegedly presented to Mr. Armstrong on the Workday system is attached to the Declaration of Herold at Ex. C.
Relevant portions of that Agreement provide:
“1. The validity, construction, interpretation, and enforcement of this Agreement shall be governed by the substantive and procedural rules of the Federal Arbitration Act (“FAA”), as the Company operates in interstate commerce. Only a court of competent jurisdiction, and not the arbitrator, shall have the authority to resolve gateway questions of arbitrability as well as the validity of the class, collective, and representative action waiver as set forth in Paragraph 7 of this Agreement.
“2. Employee and Company agree to submit all “Claims” (defined in Paragraph 6 below)
between Employee and Company that may arise out of or relate in any way to Employee’s employment with Company, including but not limited to the termination of Employee’s employment and Employee’s compensation, to FINAL and BINDING arbitration. The arbitration shall be held in accordance with the then-effective Judicial Arbitration and Mediation Services (“JAMS”) Employment Arbitration Rules and Procedures (“JAMS Rules”) (available online at http://www.jamsadr.com), as the exclusive remedy for such dispute, and not by a lawsuit or resort to court process. Employee can also obtain a copy of the JAMS Rules by contacting hrsupport.us@envistaco.com.
“6. Definition of “Claim(s)”: Included within the scope of this Agreement and covered by this Agreement are all Claims relating to, arising out of, in connection with, or involving Employee’s application for employment, employment or termination of employment with the Company, whether based on tort, express or implied contract, any covenant of good faith and fair dealing, any federal, state, or local statute (including, but not limited to, any claims for discrimination, retaliation, and harassment, wage and hour claims, claims for payment of wages and benefits, and claims for violation of employment rights, whether based on the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, as amended, the California Labor Code, the Fair Labor Standards Act, the Family and Medical Leave Act, the California Family Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, or any other federal, state, or local law or regulation), any federal or state constitution and/or any public policy, equitable law, common law, or otherwise.
“14. NOTE TO EMPLOYEE: YOU AND COMPANY ARE AGREEING TO HAVE ANY AND ALL CLAIMS THAT ARISE OUT OF YOUR EMPLOYMENT DECIDED BY NEUTRAL ARBITRATION INSTEAD OF A JURY OR COURT TRIAL. THIS ARBITRATION AGREEMENT AFFECTS YOUR LEGAL RIGHTS. YOU MAY WANT TO SEEK LEGAL ADVICE BEFORE ENTERING INTO THIS AGREEMENT. By signing below or by clicking I AGREE in