Judge Deirdre Hill, Case 19TRCV00525 2022-08-26 Tentative Ruling

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On June 13, 2019, plaintiff Marisol Marcus filed a complaint against Tony Oliva and Michael Grant Construction Services, Inc. for (1) sexual battery in violation of Civil Code 1708.5, (2) battery, (3) IIED, (4) negligence, and (5) negligent hiring.

On September 3, 2020, the court granted Tony Oliva’s motion to quash service of summons as to the proof of service filed on February 24, 2020.

On June 1, 2021, the court granted Tony Oliva’s motion to quash service of summons as to the proof of service filed on April 1, 2021.

On September 23, 2021, the court granted defendant Michael Grant Construction Services, Inc.’s motion for summary judgment.

On October 14, 2021, judgment was entered in favor of Michael Grant Construction Services.

On March 4, 2022, the court overruled defendant Oliva’s demurrer to the 1^st and 2^nd causes of action and sustained without leave to amend his demurrer as to the 4^th cause of action for negligence.

CCP § 473(a)(1) provides, in relevant part: “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.”

“A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” CCP §426.50.

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047.

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 490. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 486-488.

Plaintiff Marisol Marcus requests leave to amend her complaint to add allegations of negligence against defendant Oliva as an alternate theory of recovery against Oliva “in the event the intentional claims asserted against him are unsuccessful.”

Plaintiff explains that the 4^th cause of action for negligence was asserted against “all defendants” but acknowledges that the allegations were as to defendant Grant Construction based on negligent supervision and training and not as to Oliva as an individual and that the plaintiff did not allege duty or breach of any duty against defendant. Plaintiff argues that defendant will not be prejudiced by the proposed amendment and that trial will not be delayed and that the amendment will not necessitate added preparation costs.

In opposition, defendant argues that the motion should be denied “because it intends to evade court’s previous ruling” on defendant’s demurrer on March 4, 2022. Defendant also argues that he will be prejudiced by the amendment.

In reply, plaintiff asserts that under the 4^th cause of action, the allegations were “uncertain and vague” and that she is not attempting to “evade” the court’s ruling on demurrer. Plaintiff argues that the “direct negligence claim against Oliva has never really been properly adjudicated, at least not without the opportunity to amend.” Plaintiff also argues that defendant will not be prejudiced by amendment because there is ample time to prepare for the May 2023 trial.

The court notes that the court sustained defendant Oliva’s demurrer to the 4^th cause of action without leave to amend stating that “[t]he court finds that the allegations are insufficient to state a claim for negligence against Oliva. They are directed toward Grant Construction. In any event, plaintiff has alleged throughout the complaint that defendant acted intentionally.” The parties submitted on the tentative ruling, which became the order of the court.