Judge: Cherol J. Nellon, Case: BC710818, Date: 2023-04-14 Tentative Ruling

Case Number: BC710818    Hearing Date: April 14, 2023    Dept: 28

Defendants Felipe Garcia and Mayra Alejandra Vargas’s Motion for Leave to File the First Amended Answer

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 20, 2018, Plaintiffs Oscar Duran (“Oscar”), Angela Duran (“Angela”), Jasmine Duran (“Jasmine”), Matthew Duran (“Matthew”) filed this action against Defendants Felipe Garcia (“Garcia”), Mayra Alejandra Vargas (“Vargas”), Los Angeles County (“County”) and City of Los Angeles (“City”) for wrongful death, negligence, dangerous condition of public property, negligence, premises liability, mandatory duty to protect against injuries, vicarious liability and survivor’s action.

On May 10, 2019, the County filed an answer and a Cross-Complaint against Cross-Defendants Garcia and Vargas for implied indemnity, contribution and declaratory relief. On January 2, 2020, the County filed the FACC. On February 28, 2020, Vargas field an answer. On June 15, 2020, Garcia filed an answer.

On June 19, 2019, the Court dismissed the City, with prejudice, pursuant to Plaintiff’s request. On June 15, 2020, Garcia filed an answer.

On February 7, 2023, Vargas and Garcia (“Moving Defendants”) filed a Motion for Leave to File the First Amended Answer to be heard on March 17, 2023. The Court continued the hearing to April 14, 2023.

Trial is currently scheduled for February 1, 2023.

PARTY’S REQUESTS

Moving Defendants request leave to file and serve the proposed First Amended Answer.

LEGAL STANDARD

CCP 472(a)provides “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment.”

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

The Court previously continued the hearing so that Moving Defendants could submit a proposed amended answer with their motion, as required by CRC 3.1324(a). Moving Defendants filed a proposed amended answer on April 6, 2023. However, as noted before, Vargas never submitted an initial answer—the Court cannot grant leave to file an amended answer for a party who has not filed an initial answer. Moving Defendants were ordered to submit a conformed copy of Vargas’ answer in order to allow granting of leave but failed to do so. The amended answer thus cannot be made the operative answer, as it lists both Garcia and Vargas as filing an amended answer. The Court denies the motion.

CONCLUSION

Defendants Felipe Garcia and Mayra Alejandra Vargas’s Motion for Leave to File the First Amended Answer is DENIED.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

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