Judge: Cherol J. Nellon, Case: 21STCV00998, Date: 2023-04-05 Tentative Ruling

Case Number: 21STCV00998    Hearing Date: April 5, 2023    Dept: 28

Plaintiff Julian Chavez’s Motion for Leave to File the Second Amended Complaint

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On January 11, 2021, Plaintiff Julian Chavez (“Plaintiff”) filed this action against Defendants Home Depot U.S.A., Inc. (“HD”), Moshe Amar (“Amar”), MC Construction and Design, Inc. (“MC”) and Allan Daniel Chanchilla Acosta (“Acosta”) for premises liability, negligence and statutory liability.

On June 1, 2021, Plaintiff filed the FAC.

On July 6, 2021, HD filed an answer. On July 29, 2021, Amar and Acosta filed an answer.

On February 10, 2023, Plaintiff filed a Motion for Leave to File the Second Amended Complaint to be heard on April 5, 2023. On March 22, 2023, HD filed an opposition. On March 28, 2023, Plaintiff filed a reply.

Trial is currently scheduled for May 5, 2023.

PARTY’S REQUESTS

Plaintiff requests leave to file and serve the proposed Second Amended Complaint. Plaintiff’s proposed amendments consists of removing and adding lines of text from the FAC.

HD requests the court deny the motion, OR, that the Court continue the trial date to allow HD time to investigate these claims after January 3, 2024.

LEGAL STANDARD

CCP §473(a) states “(1) 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.

(2) When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.”

CCP §576 provides: “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

DISCUSSION

By in large, the proposed amendments of the SAC do not differ from the allegations of the SAC, removing and adding additional lines of text for clarity's sake. Plaintiff adds in four paragraphs the articulate that HD allowed for a dangerous condition by allowing individuals to assemble in the subject area without putting into place effective/adequate traffic controls or taking steps to discourage such assembly. This is in line with the original allegations in the complaint, providing additional clarity as to Plaintiff’s argument.

Plaintiff also removes allegations that identify Plaintiff as a day laborer or someone seeking employment as a day laborer; this change is made to reflect the fact that Plaintiff’s counsel has been unable to verify that as the reason for Plaintiff’s attendance on that day, as he is currently in a coma. HD recently filed a Motion to Dismiss based on the discrepancy between counsel’s evidence and the complaint regarding Plaintiff’s Day laborer status—this better aligns the complaint with the facts. Finally, Plaintiff adds in allegations that HD allows patrons and others to assemble as it promotes their business model. This addresses previous issues that have been outlined throughout litigation.

As requested by HD, the Court is amenable to a short continuance to allow HD time to file a demurrer; there should be no need for substantial discovery, as the basic facts of the SAC are the same as the FAC. However, the Court will not grant a continuance in order to allow HD to file a MSJ; as discussed in the recent Motion to Dismiss, HD failed to file a MSJ based on the initial trial date. Plaintiff’s SAC does not make up for HD’s failure to file and serve a timely motion.

CONCLUSION

Plaintiff Julian Chavez’s Motion for Leave to File the Second Amended Complaint is GRANTED. Plaintiff is ordered to file and serve the SAC within 10 days of the hearing on the motion.

Trial is continued to July 6, 2023, at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Final Status Conference is June 22, 2023, at 10:00 a.m. in Department 28 of the Spring Street Courthouse. All discovery and related dates, except for the MSJ deadline, are set to trail the new trial date. The MSJ hearing date is based on the prior trial date of May 5, 2023.Moving Party is ordered to file the proof of service of this ruling with the Court within 10 days.

The parties are directed to the header of this tentative ruling for further instructions.