Judge: Anne Hwang, Case: 22STCV25189, Date: 2024-06-24 Tentative Ruling

Case Number: 22STCV25189    Hearing Date: June 24, 2024    Dept: 32

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. 

TENTATIVE RULING

BACKGROUND

On August 4, 2022, Plaintiff Armen Novikov (“Plaintiff”) filed a complaint against Defendants Manor Park LLC, John Doe 1, John Doe 2, and Does 3 to 100 for injuries related to shooting in an apartment complex.

On February 22, 2024, Plaintiff passed away. Plaintiff filed a notice of death on February 27, 2024.

On May 17, 2024, Silva Asatryan, “individually and as successor-in-interest” to Plaintiff, filed the instant motion for leave to file an amended complaint to reflect Plaintiff’s death, transform this case to a survival action, and designate Silva Asatryan as the successor in interest. Defendant Manor Park, LLC (“Defendant”) opposes and Plaintiff replies.

LEGAL STANDARD

Amendment to Pleadings: General Provisions

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).)

California Rules of Court, rule 3.1324:  Procedural Requirements

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:

“(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.”

Successor in Interest

California Code of Civil Procedure section 377.31 provides that the decedent’s personal representative or, if none, the decedent’s successor in interest may continue a decedent’s pending action. (Code Civ. Proc., § 377.30; see Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78-79.) A successor in interest is the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of the cause of action. (Code Civ. Proc., § 377.11.) Section 377.33 provides that the court in which an action is continued may make any order concerning parties that is appropriate to ensure proper administration of justice, including the appointment of the decedent’s successor in interest as a special administrator or guardian ad litem.   

Section 377.32 provides that a person who seeks to commence such an action as the decedent’s successor in interest must file an affidavit or declaration providing certain information, including the decedent’s name, date and place of decedent’s death, and statements regarding whether the estate has been administered and that the affiant or declarant is the successor in interest on decedent’s claim. (Id., § 377.32(a).) A certified copy of the decedent’s death certificate must also be attached to the affidavit or declaration. (Id., § 377.32(c).) 

DISCUSSION

As an initial matter, Defendant argues that since this motion was filed by “Silva Asatryan, individually and as successor-in-interest to Armen Novikov” before she was designated successor in interest, she lacks standing. The Court agrees. Silva Asatryan has not sought leave to substitute as plaintiff.

Silva Asatryan also has not complied with the California Rules of Court, in that the declaration in support does not explain why the request for amendment was not made earlier.

Finally, Defendant also contends the declaration is deficient because Asatryan did not provide a certified copy of a death certificate and did not declare the place of death. The declaration attached to the motion stated that Plaintiff passed away in the County of Los Angeles. (Asatryan Decl. ¶ 3.) However, the attachment appears to be translated from Armenian and shows Plaintiff died in Armenia. (See Asatryan Decl., Exh. 3.) In reply, Plaintiff admits this error and files a revised declaration. The revised declaration from Asatryan states Plaintiff passed away in Yerevan, Armenia.

However, in reply, Plaintiff discusses no authority showing that the attached translation is a “certified copy” pursuant to section 377.32(c). Instead, the exhibit appears to be a typed translation from an Armenian Certificate of Death; the original certificate is not provided. Furthermore, the purported translator of the document, “Anush Khanamiryan” signed below the following statement: “I, Anush Khanamiryan, attest to my competence to translate from Armenian to English, and I certify that this is a correct English Translation of all pertinent information from the Armenian original.” Anush Khanamiryan’s signature was notarized by a notary public, Naira Sahakyan. However, notably, the translator did not sign “under penalty of perjury” or pursuant to Code of Civil Procedure section 2015.5.

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion for leave to amend their complaint is denied.

Plaintiff to provide notice and file a proof of service of such.