Judge Audra Mori, Case 19STCV33385 2022-12-12 Tentative Ruling

This action arises out of an alleged assault and battery between a bar manager and patron in 2017. Che Johnson (Plaintiff) filed this action against Scorpion Management, LLC, The Paja Group, LLC, Meridian Restaurant Group, LLC, Meridian Entertainment Group, Maddox Pace Clinkscales, Rajiv Fernando, Kathia Molina, Joshua Woodward, Jonathan Chu, Nervon Whittingham (collectively, Named Defendants) and Does 1 to 25 on September 19, 2019, alleging causes of action for (1) assault, (2) battery, (3) intentional infliction of emotional distress, (4) negligence, and (5) negligent hiring.

On March 4, 2021, Plaintiff dismissed Named Defendants. On July 14, 2021, Plaintiff filed Requests for Default Judgement as to defaulted defendants Does 1-4. Also on July 14, 2021, Plaintiff filed a Request for Dismissal as to Does 1-20, which included Does 1-4.

On April 7, 2022, the Court denied Plaintiff’s request for default judgment against Does 1-4 for various reasons including the complaint’s failure to state causes of action against Does 1-4 and the fact Does 1-4 were dismissed in connection with Plaintiff’s July 14, 2021 Request for Dismissal of Does 1-20 and default cannot be entered against dismissed defendants.

On September 12, 2022, Plaintiff filed this instant motion for leave to amend complaint and to vacate dismissal to (1) amend the complaint to state causes of action against Does 1-4 and (2) vacate the dismissal of Does 1-4. The Court notes the instant motion improperly seeks two forms of relief by way of a single motion. However, in the interests of justice, the Court considers the motion on its merits. Neither an opposition nor a reply were filed.

Plaintiff seeks relief from the dismissal against Does 1-4 pursuant to Code of Civil Procedure section 473(b). Section 473(b) provides that the court may, on any terms as may be just, relieve a party from dismissal taken against them through their mistake, inadvertence, surprise, or excusable neglect. Section 473(b) requires the application for this relief to be made within a reasonable time and no case exceeding six months after the dismissal was taken.

Plaintiff’s motion to vacate the dismissal, pursuant to Section 473(b), is untimely. As set forth above, the Court dismissed Does 1-4 at Plaintiff’s request on July 14, 2021. Plaintiff filed the instant motion on September 12, 2022, well more than six months after the Court dismissed Does 1-4.

Further, Plaintiff asserts the dismissal of Does 1-4 after default was entered against them was inadvertent. (Motion, p. 5.) However, Plaintiff submits no evidence supporting this assertion and fails to address the untimeliness of the motion brought pursuant to Section 473(b), which requires the motion to be filed within six months of the dismissal.

Under Code of Civil Procedure section 473(a)(1), the court may, in furtherance of justice allow a party to amend any pleading by adding or striking out the name of any party or by correcting any other mistake. California judicial policy favors permitting amendments to pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Pursuant to this policy, requests for leave to amend generally will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the Court, and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; see also Solit v. Tokai Bank, Ltd., New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

CRC Rule 3.1321(a) requires that a motion to amend must: “[i]nclude a copy of the proposed… amended pleading… [and] state what allegations in the previous pleading are proposed to be [deleted and/or added], if any, and where, by page, paragraph, and line number, the [deleted and/or additional] allegations are located…”

CRC Rule 3.1324(b) provides, as follows: “[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.”

Plaintiff’s motion does not comply with CRC Rule 3.1321(a). While Plaintiff includes a copy of the Proposed First Amended Complaint (FAC), Plaintiff does not state what allegations are to be added or deleted and provides no description as to the substantive changes of the pleading. Based on the Court’s denial of Plaintiff’s request for default judgment against Does 1-4 for failure to state a claim against Does 1-4, it would seem Plaintiff is seeking to amend the pleading to state a claim against Does 1-4; however, the motion provides no information as to these proposed changes. In the supporting declaration, Plaintiff’s counsel asserts only that the purpose of the proposed amendment is necessary to remedy the error that was made when Plaintiff requested dismissal of Does 1-4 by way of requesting dismissal of Does 1-20. (Omotosho Decl. ¶ 3.) However, Plaintiff’s request to vacate the dismissal of Does 1-4 is separate from his request to amend his pleading.

Plaintiff’s motion does not fully comply with CRC Rule 3.1321(b). The declaration accompanying the motion does not specify the effect of the amendment, when facts giving rise to the amended allegations were discovered, and/or why the request for amendment was not made earlier.

Plaintiff states that he was not aware that Does 1-4 were inadvertently dismissed until after the April 7, 2022 request for default judgment was denied. (Motion p. 3; Minute Order, filed April 7, 2022, p. 2.) However, there is no evidence supporting this assertion as it is not referred to in the declaration of counsel. Even if that representation were accepted, Plaintiff waited nearly five months to bring the instant motion. Further, Plaintiff argues there is no prejudice to Does 1-4 because they were already served in this case and should be familiar with the facts and issues contained in the complaint and proposed amended complaint. (Motion, pg. 4.) However, Plaintiff is seeking leave to amend because the original Complaint did not contain any allegations concerning the Doe defendants’ liability for the incident. Moreover, in light of the procedural deficiencies discussed above, Plaintiff has not met the requirements for obtaining an order granting leave to amend.

Accordingly, Plaintiff’s motion to vacate the dismissal of Does 1-4 is DENIED. Plaintiff’s motion for leave to amend the complaint is DENIED.

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Hon. Audra Mori

Judge of the Superior Court

[1] To the extent that the dismissal of all named or identified defendants dispossesses the Court of jurisdiction to grant leave to amend at this juncture, the motion for leave is also denied on that basis.