NATURE OF PROCEEDINGS: Hearing on Plaintiff's Motion for Leave to File First Amended Complaint

 

Plaintiff's Motion for Leave to File First Amended Complaint is granted.

 

BACKGROUND

Plaintiff Samvel Ayvazyan (Plaintiff) filed this action against 7-Eleven, Inc. (Defendant), alleging that after purchasing a drink at Defendant’s store, he was assaulted and physically attacked by Defendant’s employee.

The causes of action are: (1) Negligence; (2) Intentional Infliction of Emotional Distress; (3) Negligent Infliction of Emotional Distress; (4) Battery; (5) Assault; (6) False Imprisonment; (7) Vicarious Liability; (8) Negligent Supervision; and (9) Premises Liability.

Plaintiff filed a Motion for Leave to File First Amended Complaint. Defendant filed an Opposition.

 

LEGAL STANDARD

California Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

“Leave to amend a pleading … is entrusted to the sound discretion of the trial court.” Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488 (citations omitted). “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047. Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. See id. at p. 1048. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281, overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)

Under California Rules of Court Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Under California Rules of Court Rule 3.1324(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.

 

ANALYSIS

Plaintiff seeks leave to amend the Complaint by (1) naming Sunset Elite, Inc. (Sunset) as an additional defendant; (2) naming Plaintiff’s spouse, Emma Panosyan, as an additional plaintiff, and (3) adding a Loss of Consortium cause of action against defendants.

Defendant does not oppose Plaintiff amending the Complaint to add Sunset as a named defendant, but opposes adding Plaintiff’s spouse as an additional plaintiff and the proposed Loss of Consortium cause of action. Defendant argues that Plaintiff’s proposed Loss of Consortium claim is barred by the statute of limitations.

 The Court declines to review the validity of the proposed amended pleading. See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760. (“the better course of action [is] to allow [the moving party] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.”).

 

CONCLUSION

Plaintiff's Motion for Leave to File First Amended Complaint is granted. The proposed First Amended Complaint, attached as Exhibit 2 to the Motion, shall be filed and served within ten days of this order.