Judge: Edward B. Moreton, Jr., Case: 22STCV00240, Date: 2023-01-25 Tentative Ruling

Case Number: 22STCV00240    Hearing Date: January 25, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                    Plaintiff Cecil Elmore

RESPONDING PARTY:         Defendants Abbas Eftekhari, Eftekhari DDS, Ivan Torres, Leidy Vasquez, Gemma Panotes

BACKGROUND

This case arises from a claim of professional negligence.  Plaintiff Cecil Elmore was a patient of Defendants Abbas Eftekhari and Eftekhari DDS (collectively “Eftekhari Defendants”).  He claims the Eftekhari Defendants allowed Defendants Ivan Torres, Leidy Vasquez and Gemma Panotes to perform dental cleaning on him even though they were not registered with either the Dental Board of California or the Dental Hygiene Board of California.  Plaintiff claims he suffered injuries to his mouth and other “negative mental medical conditions” as a result of Defendants’ negligence.  Plaintiff is appearing in pro per. 

This hearing is on Plaintiff’s motion for leave to amend his second amended complaint.  Plaintiff seeks leave to remove a claim for intentional tort and add factual allegations supporting his claim for negligence.                 

LEGAL STANDARD

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.” 

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 has not filed a declaration in support of his motion as required under CRC Rule 3.1324(b).  Plaintiff has not identified the amendments, why they are necessary and proper, when facts giving rise to the amendments were discovered and the reasons why the request for amendment was not made earlier. 

Plaintiff has also failed to comply with CRC Rule 3.1324(a).  Plaintiff’s motion does not “state what allegations in the previous pleading are proposed to be deleted and where by page, paragraph, line number, the deleted allegations are located” nor does the motion “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, Plaintiff has not filed a memorandum of points and authorities, as required by CRC Rule 3.1113.  Consequently, there is no “statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”  CRC Rule 3.1113(b).  The court may construe the absence of a memorandum as an admission that the motion is not meritorious.  CRC Rule 3.1113(a). 

Accordingly, because of the deficiencies described above, the motion will be denied without prejudice to allow plaintiff to refile the motion if he wishes.  If he does so he should comply with CRC Rules 3.1324 and 3.1113.    

CONCLUSION

Based on the foregoing, Plaintiff’s motion for leave to amend the second amended complaint is denied without prejudice.      

IT IS SO ORDERED.

DATED: January 25, 2023                                                   ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court