Judge Deirdre Hill, Case 21STCV37320 2023-02-01 Tentative Ruling

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Responding Party: (1) Defendant County of Los Angeles, (2) defendants Ocean Blue Environmental Services, Inc., Ed Acosta, and Justin Lee

Motion for Leave to File a First Amended Complaint (filed on October 17, 2022)

The motion is GRANTED except as to the proposed 3^rd cause of action against County for negligent hiring, retention, and supervision and claim for punitive damages under prayer (3) for punitive and exemplary damages as to the 1^st, 4^th, and 5^th causes of action, where such amendments would be futile. Plaintiff is ordered to file his FAC within five days.

On October 12, 2021, plaintiff Travis Macritchie filed a complaint against Ocean Blue Environmental Services, Inc., New Creation Engineering & Builders, Inc., and County of Los Angeles for (1) negligence, (2) negligent retention, hiring, and supervision, and (3) dangerous condition of public property. Plaintiff alleges that he was forced to swerve to avoid the impediments to his travel on the bike path in order to avoid harming the public. As a result of swerving, plaintiff fell with his bicycle and landed on his left hip. He alleges that defendants failed to take steps to make the area of their work and activities safe for pedestrians and bicyclists.

On January 18, 2022, the court denied defendant New Creation Engineering & Builders’ motion to strike punitive damages.

On February 2, 2022, plaintiff filed amendments adding as Doe defendants Thomas Jung-Gu Ryu, Henry J. Pulido, Brian Younghoon Chun, Zuriel Crisostomo, Tony Ponco, and Chris Chung.

On March 2, 2022, the court sustained plaintiff’s demurrer to New Creation Engineering’s answer with leave to amend.

On March 9, 2022, the court overruled plaintiff’s demurrer to Ocean Blue’s answer.

On November 10, 2022, the court granted plaintiff’s motion to compel further deposition and to produce documents.

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.”

“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 Travis Macritchie requests leave to file a first amended complaint to add a claim for punitive damages against defendant New Creation and individuals Justin Lee and Edmond Eugene Acosta, a cause of action for negligent hiring against defendant County, a cause of action for negligence against Justin Lee and Edmund Eugene Acosta, and a cause of action for violation of Vehicle Code §21211 against Acosta. The proposed FAC deletes the cause of action against the County for dangerous condition of public property.

Plaintiff asserts that defendant Acosta was deposed in his individual capacity and as PMK of Ocean Blue on September 12, 2022 and that plaintiff’s counsel learned facts at the deposition that support the addition of allegations, causes of action, and a claim of punitive damages. Plaintiff contends that Acosta testified that he parked two large work trucks on the bike path, that they completely obstructed the northbound lane and partially obstructed the southbound lane, that he did not place cones by the trucks and that he had parked the trucks on the path all the time. Further, plaintiff asserts, the “facts to date substantiate” that defendant Ocean Blue did not have a traffic plan for the construction site, that there were no construction warning signs, no flagmen or a safe detour, or permits or permission to park their work trucks on the bike path. Further, plaintiff contends, defendant COLA had an employee on site and witnessed the construction and the parking of the trucks on the path and failed to advise Ocean Blue not to do so “and in essence ratified the conduct by failing to stop it.”

In opposition, the County argues that the motion should be denied because an amendment would be futile and unfairly prejudice the County. Defendant County contends that the purported new cause of action for negligent supervision and hiring falls outside of the absolute trail under Gov. Code §831.4 and there is no statutory basis for such a cause of action. Further, the County contends, the proposed FAC fails to allege that County hired or had a duty to supervise Ocean Blue, but merely that an unknown and unspecified employee was at the location of the incident at some point in time when the maintenance truck was parked on the bike path. Also, defendant argues, plaintiff failed to comply with the claim presentation requirements under Gov. Code §§910 et seq. because although he included negligent hiring and supervision in the caption he did not present any facts or grounds for such a cause of action. Rather, the claim was based solely on the cause of action for dangerous condition of public property.

In opposition, defendants Ocean Blue, Lee, and Acosta argue that amendment would be futile because the additional allegations fail to support a claim for punitive damages and at best, they would only support a negligence claim as there is no specific conduct alleged that would rise to the level of maliciousness or conscious disregard or ratification or a wrongful act on behalf of an officer, director, or managing agent. As to Lee, there is no allegation that he was at worksite. As to Acosta, he testified at deposition that he parked the trucks, unloaded materials, and then was returning to put out cones when plaintiff’s bike accident occurred. As to the proposed cause of action under Vehicle Code §21211 against Acosta, defendants argue that plaintiff has not alleged a violation and that defendants are exempted under Vehicle Code §25212.

In reply, as to defendant County, plaintiff argues that defendant’s attack on the proposed amendments is improper and that they are not prejudiced by the proposed FAC and plaintiff has not been dilatory. In reply to the other defendants, plaintiff argues the same.

The court rules as follows: The court finds that plaintiff has complied with CRC Rule 3.1324. Leave, however, would be futile as against County and the claim for punitive damages against any defendant. “[L]eave to amend should not be granted where, in all probability, amendment would be futile.” Vaillette v. Fireman’s Fund Ins. Co. (1993) 18 Cal. App. 4th 680, 685 (citation omitted). The court finds that the proposed amendments as to defendant County are insufficient to state a cause of action for negligent hiring and supervision, the claim is barred by the claim presentation requirements, and the allegations do not show that the trail immunity does not bar such claim. As to the claim for punitive damages, the allegations do not show conduct that is malicious, oppressive, or fraudulent.

In light of the liberal policy in allowing amendment, the motion is GRANTED except as to the proposed 3^rd cause of action against County for negligent hiring, retention, and supervision and claim for punitive damages under prayer (3) for punitive and exemplary damages as to the 1^st, 4^th, and 5^th causes of action, as such amendments would be futile.