Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00702, Date: 2024-08-02 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00702, Date: 2024-08-02 Tentative Ruling

Case Number: 23GDCV00702 Hearing Date: August 2, 2024 Dept: E

Hearing Date: 08/02/2024 – 8:30am
Case No. 23GDCV00702
Trial Date: UNSET
Case Name: LOUISE STEPHENS v. USC VERDUGO HILLS HOSPITAL; PMB REAL ESTATE SERVICES CA, INC.; PMB REAL ESTATE SERVICES, LLC.; and DOES 1-100, inclusive

[TENTATIVE RULING ON MOTION FOR LEAVE TO AMEND]

PRELIMINARY PROCEDURAL

Moving Party: Plaintiff, Louise Stephens

Responding Party: Defendant/Cross-Complainant, ASSA ABLOY ENTRANCE SYSTEMS US, INC. (ASSA)

16/21 Day Lapse (CCP § 12c and § 1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a): Yes/No – See section titled “Tentative Ruling.”

Moving Papers: Notice/Motion; Proposed Order; Proof of Electronic Service for Proposed Order

Opposition Papers: Opposition filed only by Defendant ASSA [Defendants Verdugo MOB LP and PMB Real Estate Services, LLC did not file opposition to this motion.]

Reply Papers: Reply

RELIEF REQUESTED
Plaintiff, Louise Stephens, moves this Court for leave to file a Second Amended Complaint.

“This motion is based pursuant to California Code of Civil Procedure Section 473(a)(1), Section 576, and Rule of Court 3.1324, relevant case law, and is made on the following grounds:

1. The causes of action for Products Liability Negligence and Strict Products liability are timely and arise out of the same events as the claims asserted in the operative complaint.

2. The proposed amendment includes products liability causes of action that are allowable causes of action against Defendant ASSA ABLOY.

3. California law strongly favors allowing amendments of pleadings.

4. The Motion has been timely brought and will not result in any prejudice to any party.”

(Pl. Mot. p. ii.)

BACKGROUND
Plaintiff filed the initial Complaint on 4/6/2023.

On 8/7/2023, Plaintiff filed a First Amended Complaint against Defendants: (1) USC Verdugo Hills Hospital; (2) PMB Real Estate Services CA, Inc.; (3) PMB Real Estate Services, LLC.; and (4) Does 1-100 inclusive.

On 11/28/2023, Plaintiff dismissed, without prejudice, all causes of action against Defendant USC Verdugo Hills Hospital.

Further, on 11/28/2023, Plaintiff designated Defendant, Doe 2, as ASSA ABLOY ENTRANCE SYSTEMS US INC.

Further, on 11/28/2023, Plaintiff designated Defendant, Doe 1, as Verdugo MOB, LP.

On 12/8/2023, Plaintiff dismissed, without prejudice, Defendant PMB Real Estate Services CA, Inc.

On 12/22/2023, Defendant, ASSA ABLOY ENTRANCE SYSTEMS US, INC., filed its Answer.

On 12/22/2023, ASSA ABLOY ENTRANCE SYSTEMS US, INC. filed Cross-Complaint.

On 1/11/2024, Verdugo MOB LP filed a Cross-Complaint against ASSA ABLOY ENTRANCE SYSTEMS US, INC. and MOES 1-10.

The FAC lists one cause of action titled as “PREMISES LIABILITY: NEGLIGENCE.” The FAC alleges that on or about March 7, 2022, due to negligence and dangerous conditions, an unsafe glass sliding door struck Plaintiff causing her to fall and suffer personal injury. (See FAC ¶ 5.)

LEGAL STANDARD – LEAVE TO AMEND
The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and 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. (Code Civ. Proc., § 473, subd. (a); Branick, supra, 39 Cal.4th at 242.) Judicial policy favors resolution of all disputed matters between the parties and, therefore, the courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial where the adverse party will not be prejudiced.”].) Leave to amend is thus liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Id.)

Under California Rules of Court, rule 3.1324, a motion to amend a pleading before trial must (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. (Cal. Rules of Court, rule 3.1324(a).)

Further, a separate supporting 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 reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

“Leave to amend is in general required to be liberally granted [citation omitted], provided there is no statute of limitations concern. Leave to amend may be denied if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. [citation omitted].” (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.)

ANALYSIS

CRC 3.1324(a)

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

(1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

Here, Plaintiff attached as Exhibit 1 to its motion the Proposed Second Amended Complaint.

(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

Here, it does not appear as if the purpose of the proposed SAC is to delete allegations. It appears as if the purpose of the proposed SAC is to add allegations.

(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. (Cal. Rules of Court, rule 3.1324(a).)

Here, Plaintiff’s notice of motion and Plaintiff’s counsel’s (Carolyn L. Tan) declaration indicates what and where the additional allegations will be located in the SAC.

CRC 3.1324(b)

Further, under CRC 3.1324(b), a separate declaration must accompany the motion and must specify:

(1) the effect of the amendment;

The Tan declaration states in relevant part, “The effect of the amendment is that there will be a second cause of action for negligence products liability and a third cause of action for strict products liability against Defendant ASSA ABLOY. These claims originate from the same set of facts as the operative complaint. Plaintiff seeks the same damages as originally pleaded.” (Tan Decl. ¶ 12.)

(2) why the amendment is necessary and proper;

The Tan declaration states that the SAC is necessary to resolve all claims at one time and to preserve judicial resources. (See Tan Decl. ¶ 13.)

(3) when the facts giving rise to the amended allegations were discovered;

In relevant part here, Tan’s declaration states:

10. On February 9, 2024, Plaintiff received Defendant Assa Abloy’s discovery responses, which included its purchase agreement with PMB REAL ESTATE SERVICES, its installation and service manual, and photographs of the automatic door upon installation in August 2016.

11. After consultation with our expert and consultants, there is a potential products liability case for omitted and failed sensors and improper door opening speed or pressure. The existing design allowed persons to enter a dangerous space where they could be injured by a retracting door mechanism. There were also failure of warnings and adequate instructions. Although Plaintiff has informally inspected the area, a formal site inspection is set for July 31, 2024.

(Tan Decl. ¶¶ 10-11.)

(4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

Here, Tan states, “The complaint was not amended earlier because it was initially thought that Assa Abloy negligently failed to place required warning stickers on the doors in violation of building codes and its own manual. However, Assa Abloy has represented that during installation in 2016, it did properly place all warning stickers.” (Tan Decl. ¶ 14.)

TENTATIVE RULING
Plaintiff’s proof of service indicates proper service by electronic mail on counsel for Defendants ASSA and Verdugo MOB, LP.

However, as to Defendant, PMB Real Estate Services, LLC., eCourt lists Defendant’s counsel’s email address as Thomas.Pokladowski@wilsonelser.com. At the hearing, Plaintiff and Defendant’s counsel should address why this address was not served the moving papers. [The Court notes that both Verdugo MOB, LP and PMB Real Estate Services, LLC appear to be represented by Wilson, Elser, Moskowitz, Edelman & Dicker LLP (Wilson). Verdugo MOB LP appears to be properly served because this motion was served at the email address of vladyslava.turner@wilsonelser.com, which is the address listed on eCourt for Verdugo MOB LP’s counsel at Wilson. However, although PMB Real Estate Services, LLC is also represented by Wilson, eCourt lists PMB Real Estate Services, LLC as having a different attorney at Wilson named Thomas Pokladowski, and the email address for Thomas that is listed on eCourt is not listed on Plaintiff’s proof of service for the moving papers.]

Therefore, the parties should be prepared to address whether or not there is a service issue with respect to this motion.

As to the merits of this motion, the Court tentatively plans to GRANT Plaintiff’s motion for leave to file a Second Amended Complaint.

Plaintiff complied with all the requirements of California Rules of Court, Rule 3.1324(a)-(b). Further, none of Defendant’s arguments in Opposition are availing. Defendant simply argues about what Defendant believes actually happened, as if this is a contested evidentiary hearing that resolves the merits of this case. Defendant also argues that it does not own, operate, maintain, nor manage the subject premises. Overall, Defendant’s arguments in opposition are not availing or on point for this type of motion.

Further, Defendant’s argument that this motion is not made in the furtherance of justice under CCP § 473 because the parties would have to re-engage in additional costly discovery is unavailing.