Judge: Anne Richardson, Case: 22STCV19207, Date: 2023-03-27 Tentative Ruling

Case Number: 22STCV19207    Hearing Date: March 27, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Gresham Lombard sues a number of Defendants pursuant to a First Amended Complaint alleging claims of (1) Negligence, (2) Strict Liability – Failure to Warn, (3) Strict Liability – Design Defect, (4) Fraudulent Concealment, and (5) Breach of Implied Warranties on the alleged grounds that, from about 1990 through the early 2000s, Plaintiff Lombard worked at oil refineries and chemical plants in California doing shutdowns and turnarounds, painting, maintenance, construction, and other work, with his exposure to crude oil, fuels, and petroleum hydrocarbon solvents therethrough—all containing significant concentrations of benzene—causing serious injuries to Lombard’s internal organs—including myelodysplastic syndrome—necessitating hospitalization, surgeries, chemotherapy, and other treatments for Lombard, with a bone marrow transplantation now being medically necessary as treatment.

On February 27, 2023, Plaintiff Lombard filed a Motion for Leave to File Second Amended Complaint in this action to add to the caption of the complaint in this lawsuit numerous new defendants who were identified as Doe defendants in the body of the First Amended Complaint.

Defendants Kinder Morgan Liquids Terminals, LLC, and Braskem America, Inc. (Does 2 and 17) filed a notice of non-opposition on March 3, 2023.

Specially Appearing Defendant Enterprise Products Partners, L.P. filed its own non-opposition notice on March 10, 2023, requesting therein that the Court hear its motion to quash as to the proposed Second Amended Complaint rather than the First Amended Complaint to which the quash motion is currently directed. (The quash motion was made on February 9, 2023 against the First Amended Complaint and is set for hearing on April 11, 2023.)

The motion is otherwise unopposed.

Motion for Leave to File Second Amended Complaint: GRANTED.

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.”

Under California Rules of Court Rule, rule 3.1324, subdivision (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 Rule of Court, rule 3.1324, subdivision (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.

“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; however, the Court 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, 403-06.)

However, leave to amend may also be properly denied when “the insufficiency of the proposed amendment is established by controlling precedent and . . . [can]not be cured by further appropriate amendment.” (California Casualty General Ins. Co. v. Superior Court, supra, 173 Cal.App.3d at pp. 280-81; see, e.g., Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 231 [not an abuse of discretion to deny leave to amend when “proposed amendment would have been futile because it was barred by the statute of limitations” with no indication of relating back to the original complaint].) However, “even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.’” (Kittredge Sports Co. v. Superior Court, supra, 213 Cal.App.3d at p. 1048 [quoting California Casualty General Ins. Co. v. Superior Court, supra, at p. 280].)

Further, if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-40.) In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. (Id. at p. 940.) 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. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-88.)

Analysis

Here, Plaintiff Lombard has lodged a Second Amended Complaint with the Court satisfying the requirements provided in California Rules of Court Rule, rule 3.1324, subdivision (a).

Further, Plaintiff Lombard has provided a declaration from counsel Raphael Metzger satisfying the requirements provided in California Rules of Court Rule, rule 3.1324, subdivision (b) by explaining: (1) the effect of the amendment would be to add numerous new defendants who were identified as Doe defendants in the body of the First Amended Complaint; (2) the amendment is necessary and proper, where one Doe defendant has been unable to file an Answer to First Amended Complaint with this Court because the caption page in this action did not include the Doe defendant, prompting the clerk to reject the Answer; (3) this clerical error was only discovered recently, upon Plaintiff’s counsel receiving this information from a Doe defendant’s counsel; and (4) amendment was not made earlier because the facts underlying the request were only recently learned, with the First Amended Complaint only being filed on January 6, 2023. (See Mot., Metzger Decl., ¶¶ 6-9.)

Last, because the motion is unopposed and adequately states the purpose of the filing of the Second Amended Complaint, the Court finds more than sufficient grounds exist to GRANT this motion.

Conclusion

Plaintiff Gresham Lombard’s Motion for Leave to File a Second Amended Complaint is GRANTED.