Judge Anne Hwang, Case Number: 21STCV27305, Date: 2024-08-16 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On July 26, 2021, Plaintiff Patricia Amezquita (“Plaintiff”) filed a complaint against Defendants City of Huntington Park, County of Los Angeles, California Department of Transportation, and Does 1 to 50 for premises liability. Plaintiff alleges that on July 17, 2020, she fell over a raised or broken area of the street near the 6300 block of Pacific Boulevard in Huntington Park. (Complaint, 5.)

On February 20, 2024, Plaintiff filed an amendment to the complaint, substituting Sully-Miller Contracting Company (“Sully-Miller”) as Doe 1.

On February 23, 2024, City of Huntington Park filed a cross-complaint against Sully-Miller and Roes 1 to 25 for negligence, indemnity, and contribution. On March 29, 2024, Sully-Miller filed an answer to the cross-complaint and its own cross-complaint for indemnity and contribution against Moes 1 to 50.

On June 27, 2024, Sully-Miller filed the instant motions to amend its answers to the complaint and cross-complaint by adding an affirmative defense for “Completed and Accepted Doctrine.” City of Huntington Park (“City”) opposes and Sully-Miller replies.[1]

Under Code of Civil Procedure section 576, “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “[t]he 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.”¿

“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.)¿ The Court of Appeal in Morgan v. Superior Court held “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, citations omitted.) Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

“The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 6:636 (hereafter Weil & Brown).) Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.) However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).) “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. . . . But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

“Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.) For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, 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.”

In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

As an initial matter, the procedural requirements are met as Sully-Miller has identified the location of the proposed added allegation and has provided a copy of the proposed amended answers. (See Glinka Decl., Exh. C.) Additionally, the supporting declaration explains why the amendment is needed, when the facts were discovered, and why it was not made earlier.

The affirmative defense sought to be added to the responsive pleadings alleges that the work Sully-Miller provided was complete and “that any alleged defect in this work was or could have been discovered during the course of a reasonable inspection, and that the work was accepted as complete by the property owner, . . . thus barring each and every cause of action asserted in the Complaint.”

Sully-Miller contends that on June 25, 2024, its counsel deposed City’s person most knowledgeable regarding a Notice of Completion that it filed following a street improvement project in 2019. The witness testified that the project was completed on July 31, 2019, that City filed the Notice of Completion on December 11, 2019, and had an opportunity to inspect Sully-Miller’s work. (Glinka Decl. ¶ 4.) Sully-Miller contends these facts constitute a complete defense to the action.

City has filed an opposition to the motion to amend the answer to the cross-complaint. City argues that Sully-Miller knew about the Notice beforehand and did not act diligently in amending the answer.

However, given that Sully-Miller first appeared in this case in late-March 2024 and conducted City’s deposition in June 2024 to obtain the facts for this amendment, the Court does not find that it was dilatory in bringing this motion. Even if there was evidence of dilatory conduct, City has not described a specific prejudice that would result from granting leave to amend.

Accordingly, Defendant/ Cross-Defendant Sully-Miller Contracting Company’s motions for leave to amend answer are granted. Defendant/Cross-Defendant shall file and serve the amended answers to the complaint and cross-complaint within 10 days.

[1] The Court notes that an opposition to this motion was due August 5, 2024. City did not file its opposition until August 9, 2024. Nevertheless, the Court exercises its discretion to consider the untimely opposition absent prejudice to Sully-Miller.

DEPT:	32
HEARING DATE:	August 16, 2024
CASE NUMBER:	21STCV27305
MOTIONS:	(1) Motion for Leave to File First Amended Answer to Complaint (2) Motion for Leave to File First Amended Answer to Cross-Complaint
MOVING PARTY:	Defendant/ Cross-Defendant Sully-Miller Contracting Company
OPPOSING PARTY:	None