Judge: Audra Mori, Case: 21STCV21571, Date: 2023-02-02 Tentative Ruling

Case Number: 21STCV21571    Hearing Date: February 2, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff Paul Dewitt (“Plaintiff”) filed this action against defendants Hi-N-Dry Cocktails, Inc. (“Hi-N-Dry”) and Jerry Decker (“Decker”) for injuries Plaintiff sustained when he was attacked by Decker at Hi-N-Dry’s premises on September 6, 2019.    

At this time, Plaintiff’s mother, Lynda Dewitt, and brothers, Don Dewitt and Steve Dewitt, (collectively, “Successors”) seek to be substituted in as Plaintiff’s successors-in-interest and request leave to file a First Amended Complaint (“FAC”) to add causes of action for wrongful death, survivor rights, and declaratory relief against defendants.  Hi-N-Dry opposes the motion.  As of January 31, 2023, no reply has been filed.     

Successors state that Plaintiff suffered serious injuries as a result of the incident and died due to the injuries on June 15, 2022.  Successors argue that defendants will not be prejudiced by the FAC and that allowing the amendments will allow resolution of all disputes between the parties in one lawsuit. 

In opposition, Hi-N-Dry contends that it will be prejudiced if Successors are allowed to file the proposed FAC.  Hi-N-Dry argues that the FAC will change the characteristics of this action and require additional discovery.  Further, Hi-N-Dry contends that the motion is devoid of any evidence to support the allegation that the incident caused Plaintiff’s death. 

2. Request for Appointment of Successors in Interest

Per CCP §377.21, a pending action does not abate by reason of the plaintiff’s death; instead, per CCP §377.33, the Court may make an order substituting the plaintiff’s personal representative or successor-in-interest as the plaintiff in the action.  Per §377.31, the personal representative or successor-in-interest must make a motion to be substituted into the action. 

            In this case, the motion complies with CCP §377.32, which requires an affidavit or declaration by the individual seeking to be substituted in as the successor-in-interest plaintiff.  Successors declare they are Plaintiff’s mother, brothers, and successors-in-interest.  Further, Successors asserts no other person has a superior right to be substituted for the decedent in the pending action. 

Successors’ request to be appointed as successor-interest for Plaintiff is granted pursuant CCP § 377.31. 

3. Request 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 California Rules of Court (“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.)

Here, Successors’ motion complies with CRC Rule 3.1324.  Successors provide a copy of the proposed FAC and state what allegations they are seeking to add.  Further, Successors’ counsel provides a declaration providing the reasons why the amendments were not made earlier and asserts the proposed amendments are proper to serve judicial efficiency, as Successors assert that the amendments will allow all disputes between the parties to be resolved in a single action. 

Hi-N-Dry does not argue that Successors delayed in seeking leave to file the FAC.  Rather, Hi-N-Dry contends that it will be prejudiced if the amendments are allowed because additional discovery will be necessary.  However, the proposed FAC concerns the same underlying incident involving Plaintiff.  Further, Hi-N-Dry itself states that discovery is in its “infancy” such that the parties will be able to conduct any required discovery on the new claims.  As to Hi-N-Dry’s contention that Successors do not submit any evidence with their motion to show that the incident caused or contributed to Plaintiff’s death, Hi-N-Dry cites no authority showing that such evidence is required in connection with a motion for leave to amend.  Moreover, trial is currently set for June 21, 2023, so time remains to conduct discovery on Successors’ claims.  The Court, thus, declines the request to vacate the current June 2023 trial date at this point in time.  Hi-N-Dry does not identify any prejudice sufficient to warrant denying Successors’ motion for leave to file the FAC. 

Accordingly, Successors’ motion for leave to amend is granted.  Successors/Plaintiffs must file a separate copy of the First Amendment Complaint within 10 days.  The ruling is without prejudice to the parties filing a stipulation to continue the trial date or moving to continue the trial date with good cause shown. 

Moving party 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 2^nd day of February 2023