Judge: Anne Hwang, Case: 23STCV05575, Date: 2024-02-14 Tentative Ruling

Case Number: 23STCV05575    Hearing Date: February 14, 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 March 13, 2023, Plaintiffs Aaliyah Bella Schaeffer and Violet Imanie Schaeffer, individually and as successors in interest for Michael Eric Schaeffer (“Plaintiffs”) filed a complaint against Defendants Maximilliano Villela Payson, Lynn Parolise, and Does 1 to 50 for wrongful death resulting from a motor vehicle accident. Plaintiffs allege that Lynn Parolise owned the subject vehicle and Maximilliano Villela Payson was the driver of the vehicle which led to the death of decedent Michael Eric Schaeffer. (Complaint ¶ 28-29.) On May 16, 2023, Defendant Lynn Parolise (“Parolise”) filed an answer. On September 8, 2023, Defendant Maximilliano Villela Payson (“Payson”) filed an answer.

On January 22, 2024, Parolise filed the instant motion for leave to file an amended answer to assert affirmative defenses surrounding a purported pre-litigation settlement agreement. On January 26, 2024, Payson filed a Notice of Joinder to this motion, seeking leave to amend his answer with the same affirmative defenses. No opposition has been filed.

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.”

DISCUSSION

As an initial matter, Defendant Payson’s Notice of Joinder attempts to incorporate by reference the Memorandum of Points and Authorities from Defendant Parolise. The relief sought in the notice is not to join in the request by Defendant Parolise, but to make a separate request to amend Payson’s answer. Additionally, under Code of Civil Procedure section 1005(b), motions must be filed at least sixteen court days before the hearing. That means that the last day to file this motion was January 22, 2024. Here, Payson filed the Notice of Joinder on January 26, 2024, twelve court days before the hearing. However, no opposition has been filed and the defects therefore appear to be waived. In the interest of efficiency, the Court will consider Payson’s request, unless any party objects prior to the hearing.

Parolise seeks to amend her answer by adding a seventeenth, eighteenth, and nineteenth affirmative defense surrounding the purported pre-litigation settlement. Parolise alleges that her insurer accepted Plaintiffs’ policy limits demand and sent a proposed written release. (Cao Decl. ¶ 4.) Parolise’s counsel declares that she has been attempting to meet and confer with Plaintiffs’ counsel to discuss the settlement. However, in January 2024, she discovered that the affirmative defenses based on the settlement were not asserted in the answer. (Id. ¶ 12.)

She has satisfied the procedural requirements for bringing a motion for leave to amend by filing a declaration and the proposed answer. Additionally, it does not appear that Parolise delayed in bringing this motion after discovering the omission. Plaintiffs do not oppose this motion and because trial is currently set for September 9, 2024, it does not appear the amendment would prejudice the parties.

Counsel for Defendant Payson makes the same request and in the declaration “reference[s] the Declaration of Linh T. Cao which was filed in support of Defendant Parolis’s Motion for Leave to File First Amended Answer, and all exhibits attached thereto, as though fully set forth herein by this reference.” (Eng Decl. ¶ 5.) Counsel is admonished that such arguments ordinarily would be insufficient to establish a basis for the request. However, given the limited information provided to the Court and the lack of an opposition, it appears that the defendants are similarly situated.

Accordingly, the Court grants the motions.

CONCLUSION AND ORDER

Accordingly, Defendant Lynn Parolise’s and Maximilliano Villela Payson’s motions for leave to amend answer are granted. Defendants shall file and serve the amended answer within 10 days.

Defendant Parolise to provide notice and file a proof of service of such.