Judge: Colin Leis, Case: 19STCV07203, Date: 2023-11-16 Tentative Ruling

Case Number: 19STCV07203    Hearing Date: January 18, 2024    Dept: 74

Margaret Shaw v. Dorina Schiro, et al.

Plaintiff’s Motion for Leave to File Second Amended Complaint

BACKGROUND 

            This action arises from a dispute over premises liability.

            On February 28, 2019, Plaintiff Margaret Shaw (Plaintiff) filed a complaint against Defendants Dorina Schiro, Alfred Joseph Verdi, Graham Nudd, and Laura Nudd (Defendants).

            On October 14, 2020, Plaintiff filed a first amended complaint.

            On July 22, 2022, Defendant Laura Nudd died.

            On July 21, 2023, Plaintiff filed this motion for leave to file a second amended complaint.

LEGAL STANDARD

Under Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.”  Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend . . .”  (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number.  (Cal. Rules of Court, rule 3.1324(a).) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134(b).)

DISCUSSION 

            Plaintiff seeks to amend the operative complaint so that it includes the Estate of Laura Nudd as a defendant. As a preliminary matter, the court finds that Plaintiff has substantially complied with the applicable California Rules of Court. But Defendants argue the court should deny this motion because it is premature. Under Probate Code section 9370, an action pending against the decedent at the time of death may not be continued against the decedent’s personal representative unless the plaintiff has filed a creditor’s claim with the decedent’s estate, the claim has been denied, and the plaintiff has applied to the court in which the action is pending for an order to substitute the personal representative in the action. (Prob. Code, § 9370.) Here, however, Plaintiff filed a creditor claim on July 17, 2023. (Jarchi Decl., ¶ 1; Ex. 6.) And Plaintiff’s creditor claim has been denied by operation of law. (Prob. Code, § 9256 [“If within 30 days after a claim is filed the personal representative or the court or judge has refused or neglected to act on the claim, the refusal or neglect may, at the option of the creditor, be deemed equivalent to giving a notice of rejection on the 30th day.”].) Thus, Plaintiff may continue this action against the Estate of Laura Nudd.

CONCLUSION 

The court grants Plaintiff’s motion for leave to file a second amended complaint.

Plaintiff shall give notice.