Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY:  Plaintiff Bahram Feispor 

 

RESPONDING PARTY: Defendants Bodega Latina Corporation dba Smart and Final; Smart and Final Stores, LLC 

 

BACKGROUND 

This is a trip and fall case.  While a customer at Defendants Bodega Latina Corporation dba Smart and Final and Smart and Final Stores, LLC, Plaintiff Bahram Feispor tripped and fell over a protruding corner of a pallet, allegedly suffering severe bodily injury.  Plaintiff filed a complaint for negligence and premises liability against Defendants on November 15, 2022.       

This hearing is on Plaintiff’s motion for leave to amend the complaint to add Plaintiff’s wife, Shalila Golfeiz, and a claim for loss of consortium.  Plaintiff argues that the claim for loss of consortium arises from the same incident as the complaint, and there is no prejudice as trial is currently set for July 15, 2024, and no depositions have yet been conducted in this matter.      

LEGAL STANDARD 

Code of Civ. Proc. § 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.”¿ 

Under California Rules of Court Rule, Rule 3.1324, subdivision (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.¿¿ 

¿ 

In addition, under California Rules of Court, Rule 3.1324, subdivision (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.¿ 

¿¿ 

The Court’s discretion to grant leave “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.)¿ Ordinarily, the Court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿¿The Court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿ (See¿California Casualty General Ins. Co. v. Superior Court¿(1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by¿Kransco v. American Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390).)¿¿ 

DISCUSSION 

Plaintiff’s declaration in support of the motion to amend does not satisfy the requirements of CRC Rule 3.1324.  Plaintiff’s counsel identifies the amendments and their effect but does not identify the recently received information that prompted the amendment.  (Ahn Decl. ¶¶3-5.)  Notwithstanding this procedural defect, the Court exercises its discretion to consider the motion on its merits.   

Plaintiff seeks to add his wife (Golfeiz) as a plaintiff and a claim for loss of consortium.  The new claim arises from the same trip and fall incident as the original complaint.  While Golfeiz could file an independent complaint for loss of consortium, judicial economy, the possibility of duplicative efforts and the risk of inconsistent findings counsel in favor of adding the claim in this action.   

There is an eighth month delay between the filing of the original complaint and the present amendment.  Counsel does not explain the reason for the delay, other than attesting that he was only recently (on June 14, 2023) retained by Plaintiff’s wife.  (Ahn Decl. ¶10.)  Defendant argues that the loss of consortium claim should have been filed at the time the complaint was filed given the severity of injuries Plaintiff claims he sustained.  According to Defendants, Plaintiff and his wife should have known his injuries would prevent him from “being able to perform and work and services usually performed in the care, maintenance and management of the family home.”     

However, even if there was delay, there is no prejudice.  Although it is true “a court may deny a good amendment in proper form where there is unwarranted delay in presenting it,” it remains the case that “where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.” (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1147; see also Kittredge Sports co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 (“[Defendant] contends [Plaintiff] unreasonably delayed moving to amend… [e]ven if this were so, it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.”)); Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 (“[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.”); Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 545 (“In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it. On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.”) (citations omitted).  

Prejudice exists, for example, where the plaintiff unduly delayed in seeking leave to amend, and the amendment will require a trial continuance and a reopening of discovery on the eve of trial.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 488 (“Where the trial date is set, the jury is about to be impaneled, counsel, the parties, the trial court, and the witnesses have blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery, refusal of leave to amend cannot be an abuse of discretion”).)   

Here, we are not on the eve of trial.  Trial is set for July 15, 2024.  Even if Defendants will need to conduct further discovery as Defendants argue here, this does not rise to the level of prejudice found to warrant denial of leave to amend.  Indeed, it can be an abuse of discretion to deny leave to amend even if sought as late as the time of trial.  (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 563-565.) 

Defendants also claim prejudice because Plaintiff has expressed an intent to file a preference motion, advancing trial.  Defendants claim that by amending their complaint and then filing the intended preference motion, Plaintiff seeks to prevent Defendants from being able to mount a defense.  However, there is no preference motion currently pending before the Court.  At most, Defendants’ argument is a potential basis to rule against the preference motion, not a basis to deny leave to amend.   

Accordingly, given the liberal policy favoring amendments and the lack of prejudice, the Court grants the motion to amend.   

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff’s motion for leave to file the first amended complaint.   

 

IT IS SO ORDERED. 

 

DATED: August 30, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court