Judge: Daniel M. Crowley, Case: BC710818, Date: 2023-03-17 Tentative Ruling

Case Number: BC710818    Hearing Date: March 17, 2023    Dept: 28

Motion for Leave to File Amended Answer

Having considered the moving papers, the Court rules as follows.  No opposing papers were filed.

BACKGROUND

            On May 12, 2017, decedent Christian Duran (“Christian”) was crossing the street when he was allegedly struck by Defendant Felipe Garcia who was driving his vehicle at the time of the collision, which led to his death. Plaintiffs Oscar Duran, Angela Duran, Jasmine Duran, and Matthew Duran (collectively, “Plaintiffs”), who are Christian’s survivors, filed suit on January 20, 2018, alleging causes of action for: (1) wrongful death, (2) negligence, (3) dangerous condition of public property, (4) negligence under government code sections 815.2(a), 815.4, 835, 840.2, and 830, (5) premises liability, (6) mandatory duty to protect against injuries, (7) vicarious liability, and (8) survivor’s action against Defendants Felipe Garcia and Maira Alejandra Vargas (collectively, “Defendants”), and against Defendants Los Angeles County and City of Los Angeles.

            Defendants filed the instant motion on February 7, 2023. Plaintiffs have not opposed the motion. Defendants filed a notice of no opposition to their motion.

            No trial date is set.

PARTY’S REQUESTS

Defendants seek to amend their Answer to the Complaint to add affirmative defenses of settlement and accord and satisfaction. Plaintiffs have not opposed the motion and therefore have not requested anything.

LEGAL STANDARD

Per 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.” (CCP § 473(a)(1). Amendment may be allowed at any time before or after commencement of trial. (Id. § 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. (CRC, Rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (Id.) 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. (Id., Rule 3.1324(b).) 

DISCUSSION

            The Court notes that Defendants have not submitted a copy of the proposed amended answer with their motion. Defendants’ motion thereby fails to comply with CRC Rule 3.1324(a), which requires a copy of the proposed amended pleading to be included in the motion. (CRC 3.1324(a).) Accordingly, the Court will continue the hearing on this motion to permit Defendants an opportunity to submit a copy of the proposed amended answer and thereby comply with CRC Rule 3.1324(a).

            The Court further notes that Defendant Maira Alejandra Vargas does not appear to have previously filed an answer in connection with Plaintiffs’ complaint. If Defendant Vargas did not in fact file any such answer, the Court cannot permit her to amend a pleading that she never filed. But, the Court would also in that case be inclined to permit her to simply file an answer. The Court therefore further orders Defendants to either submit a conformed copy of Defendant Vargas’ answer to the complaint or be prepared to discuss this point further at the continued hearing.

CONCLUSION

            The Court therefore CONTINUES the hearing on this motion to April 14, 2023 at 1:30 p.m. Defendants must file and serve a copy of the proposed amended answer to the complaint no later than five court days before the hearing. Defendants must also file and serve a conformed copy of Defendant Vargas’ answer to the complaint, if any, by the same deadline.

            Defendants are ordered to give notice of this ruling.

Defendants are 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.