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1103.04000 – Amendments

PERB favors the liberal amendment of pleadings, “so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities.” (Regents of the University of California (2018) PERB Decision No. 2601-H, p. 12.) PERB Regulations explicitly provide that a party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (PERB Reg. 32648; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8 (Contra Costa), citing Fresno County Superior Court (2017) PERB Decision No. 2517-C, p. 11, partially set aside on other grounds, Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158.) Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case. (Contra Costa, supra, PERB Decision No. 2669, p. 8.) The Board contrasted the lenient amendment standard which arises before or during a hearing with the stricter unalleged violations standard which attaches after all parties have rested and the hearing is closed. A motion to amend made at the halfway point in the hearing is less likely to cause prejudice which cannot be mitigated than a motion made at the close of a hearing. No matter at what point in the hearing a motion to amend is made, the same core question must be answered: Is there undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance? There is no absolute bar to curing or otherwise amending a pleading while a dispositive motion is pending. If charging party was prejudiced by employer’s proposed amendments, the ALJ could have granted a continuance to allow him to amend his summary judgment motion and/or prepare for the hearing. However, PERB’s liberal pleading and amendment rules do not permit gamesmanship.