Judge: Colin Leis, Case: 21STCV01740, Date: 2023-01-17 Tentative Ruling

Case Number: 21STCV01740    Hearing Date: January 17, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL DISTRICT

Department 74

MOVING PARTIES:             Plaintiffs, Loris Attia, individually and as successor-in-interest to Mamdouh Habib; Sara Habib, Jennifer Habib, and Stephanie Habib

RESPONDING PARTIES:    Defendants Dow Chemical Company and Soco West, Inc.

Motion for Leave to File First Amended Complaint

The court considered the moving papers and opposition. No reply has been filed as of January 12, 2023.

BACKGROUND

            Plaintiffs Mamdouh Habib and wife Loris Attia originally brought this complaint, alleging that Mr. Habib suffered kidney cancer as a result of his occupational exposure to toxins from Defendants’ products. The initial complaint was filed on January 14, 2021, alleging causes of action for (1) negligence; (2) strict liability – failure to warn; (3) strict liability – design defect; (4) fraudulent concealment; (5) breach of implied warranties; and (6) loss of consortium.

            Mr. Habib died on March 23, 2022, after the filing of the original complaint. On August 15, 2022, the Court appointed Plaintiff Loris Attia as successor-in-interest. Plaintiffs now move for leave to file a First Amended Complaint to add wrongful death and survival damages, to name Plaintiff Loris Attia as successor-in-interest, to name heirs as wrongful death plaintiffs, and to remove mention of previously dismissed defendants.

Defendants Dow Chemical Company and Soco West, Inc (“opposing Defendants”) oppose this motion because they argue that Plaintiffs’ motion is procedurally defective because it fails to attach a proposed First Amended Complaint and fails to request a continuance of trial. Additionally, they argue that the proposed FAC contains an additional chemical that allegedly caused Mr. Habib’s injuries, which was not contained in the original complaint. Opposing Defendants object to the addition of this chemical in the theory of liability.

LEGAL STANDARD

Pursuant to 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

Plaintiffs bring this motion for leave to file a First Amended Complaint because original Plaintiff Mamdouh Habib has died since the filing of the initial Complaint. Plaintiffs wish to add wrongful death and survival damages. Additionally, because Ms. Attia has already been appointed successor-in-interest, the complaint must be amended to allow her to assert her late husband’s claims. Additionally, Plaintiffs wish to amend the complaint to add Mr. Habib’s children as wrongful death plaintiffs.

Defendants Dow Chemical Company and Soco West, Inc (“opposing Defendants”) oppose this motion because they argue that Plaintiffs’ motion is procedurally defective because it fails to attach a proposed First Amended Complaint. Additionally, Defendants state that, in light of the current trial date of May 22, 2023, they would be prejudiced without a continuance of the trial.

Defendants also filed a supplemental opposition to the motion stating that Plaintiff’s counsel emailed Dow’s counsel, asking that in exchange for stipulation for continuing the trial date, that Dow withdraw its opposition. (Firstenberg Decl. ¶ 2, Ex. A.) Plaintiff also emailed the proposed First Amended Complaint to Defendant Dow. (Firstenberg Decl. ¶ 2, Ex. C.)

            After reviewing the proposed FAC, Defendant Dow states that it discovered that Plaintiffs had added a new chemical, trichloroethylene (“TCE”) to the claims of injuries as to Dow. Defendant Dow and Defendant Soco West, Inc., who joined Defendant Dow’s opposition, oppose this addition because they argue that the statute of limitations has run on this theory and they argue they would be prejudiced in attempting to defend against this new chemical theory of liability.  

The Court finds that Plaintiffs have failed to file the Proposed First Amended Complaint with the Court, pursuant to Cal. Rules of Court, rule 3.1324(a). Thus, the Court cannot determine the contents of the proposed FAC, and the Court will not assume that Defendants attach the correct proposed FAC to their supplemental opposition when Plaintiffs have not filed one with the Court.

Additionally, if Defendants do indeed attach the correct proposed FAC to their supplemental opposition, Plaintiffs then have failed to properly include all proposed additions or deletions in their declaration. Additionally, Plaintiffs should have included in their declaration an explanation for the addition of this chemical, why the change was not made earlier, and the facts that gave rise to this discovery. 

CONCLUSION

Based on the foregoing, the court denies Plaintiff’s motion for leave to file a First Amended Complaint without prejudice.

The court orders Plaintiffs to re-file and serve within ___ days of the date of this order a new motion with the proposed First Amended Complaint and a supplemental declaration either stating by page, paragraph, and line number all the allegations that are proposed to be added and/or deleted or, in the alternative, a red-lined version of the First Amended Complaint showing the proposed additions and/or deletions. Plaintiff must include in this declaration an explanation of each addition.

Plaintiffs are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 17, 2023

_____________________________

Colin Leis

Judge of the Superior Court