Judge: Audra Mori, Case: 20STCV33913, Date: 2023-01-04 Tentative Ruling

Case Number: 20STCV33913    Hearing Date: January 4, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

On September 4, 2020, Plaintiff Ik Hoon Choi (“Plaintiff”), et al. filed this action against Defendant Filippo Marchino (“Defendant”) for damages relating to a dog bite incident.  The complaint alleges a single cause of action for negligence.  Trial is currently set for May 15, 2023. 

On November 14, 2022, Plaintiff filed the instant motion to continue the prior trial date of January 6, 2023 to 90 days after the hearing on Plaintiff’s motion for leave to file an amended complaint, which was previously set for hearing on April 20, 2023.  Because Plaintiff improperly filed the moving papers only 14 court days before the hearing, the matter was continued to January 4, 2023.  Further, on the Court’s own motion, the hearing date for Plaintiff’s motion for leave to file an amended complaint was advanced and continued to January 4, 2023. 

On December 20, 2022, Plaintiff filed an ex parte application for an order to advance Plaintiff’s motion to continue trial or to continue the trial date, which was heard by a different judicial officer.  The ex parte application was granted, and the trial date was continued to May 15, 2023, with all discovery and motion cutoff dates being ordered to track the new date.  (Min. Order, Dec. 21, 2022.) 

In light of the ruling granting the ex parte application and continuing the trial date, the instant motion to continue the previous trial date is moot.  Similarly, the Court notes that Plaintiff filed a second motion to continue trial on December 20, 2023, set for hearing on January 12, 2023, also seeking to continue the previous January 6, 2023 trial date.  The Court advances and vacates the January 12, 2023 hearing date for the second motion to continue trial.   

            The Court will now address Plaintiff’s motion for leave to file a First Amended Complaint (“FAC”).  Defendant opposes the motion, and Plaintiff filed a reply. 

2. Motion for Leave to File First Amended Complaint

CCP § 473(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.”

“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.  The court, however, 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.)

Under CRC Rule 3.1324(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 CRC Rule 3.1324(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.

Even 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.  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.  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, 486-488.)

In this case, Plaintiff seeks leave to file the proposed FAC to add a cause of action under Civil Code § 3342 and to add a claim for negligence per se against Defendant, which Plaintiff states that Plaintiff’s counsel inadvertently failed to include in the complaint.  Plaintiff contends that there will be no prejudice because the proposed causes of action arise out of the same occurrence as pled in the original complaint. 

In opposition, Defendant argues that Plaintiff’s motion improperly relies on CCP § 426.50, which governs compulsory cross-complaints, and that Plaintiff’s motion fails to comply with California Rules of Court, Rule 3.13.42(b).  Defendant argues that Plaintiff does not have a good faith basis for the delay in bringing this motion, and that proposed causes of action are merely duplicative of the claim in the complaint. 

In reply, Plaintiff asserts that Defendant will not be prejudiced by the proposed amendment because the FAC is based on the same dog bite incident alleged in the complaint. 

Defendant is correct that CCP § 426.50, cited by Plaintiff, pertains to compulsory cross-complaints, which are not at issue in this motion.  However, Plaintiff also cites to the relevant language of CCP § 473(a)(1) leave to amend to amend a pleading, albeit Plaintiff mistakenly cites the provision as “[CCP] section 437”, (Mot. at p. 5:6), instead of section 473.  Nonetheless, Defendant is clearly on notice that Plaintiff is seeking leave to file a FAC, not leave to file or amend a cross-complaint. 

However, Plaintiff’s motion fails to comply with California Rules of Court, Rule 3.1324(a)-(b).  Plaintiff does not specify what allegations in the previous pleading are proposed to be deleted, if any, nor specify what allegations are to be added and where the additional allegations are located.  It is unclear whether the only proposed changes are the addition of the two new purported causes of action on pages five and six of the proposed FAC.  Furthermore, Plaintiff did not submit a declaration as required by California Rules of Court, Rule 3.1324(b) stating why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons why the request for the amendment was not made earlier.  In responding to the contention that Plaintiff’s motion fails to comply with California Rules of Court, Rule 3.1324, Plaintiff merely provides that “[t]he ‘facts’ of the dog bite were alleged in Plaintiffs’ original complaint. Plaintiff only seeks to add two allowable causes of action based on those ‘facts.’ ”  (Reply at p. 4:10-12.)  This is insufficient to satisfy California Rules of Court, Rule 3.1324. 

            Therefore, Plaintiff’s motion for leave to file an amended complaint is denied without prejudice. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• 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. 

Dated this 4^th day of January 2023