Case Number: 21STCV05201    Hearing Date: May 10, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                                                              Wednesday, May 10, 2023

Department B                                                                                                                                                                    Calendar No. 7

PROCEEDINGS

Liam Umer, et al. v. Newvac Lift, LLC, et al.

            21STCV05201

1.      RD Waldman Construction, Inc.’s Motion for Leave to File Amended Answer     

TENTATIVE RULING

            RD Waldman Construction, Inc.’s Motion for Leave to File Amended Answer is denied without prejudice.

Background

Plaintiffs filed the Complaint on February 9, 2021. Plaintiffs allege the following facts. Plaintiffs were on the premises located at 441 23rd Street, Manhattan Beach, CA 90266. Plaintiff Liam Umer, a minor, was using an elevator installed by Defendants RD Waldman Construction, Inc. Plaintiff Liam Umer’s left arm was caught on the metal framing of the PVE vacuum elevator causing him to suffer injuries to his left arm and hand.

Motion for Leave to Amend

The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.  Code Civ. Proc., §§ 473 & 576.  Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted.  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.  However, the court 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.   Cal. Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.

The application for leave to amend should be made as soon as the need to amend is discovered.  The closer the trial date, the stronger the showing required for leave to amend.  If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the court has the 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.

Defendant moves for leave to amend the Answer to add a twenty third affirmative defense under the Completed and Accepted Doctrine.

Cal. Rules of Court, Rule 3.1324(a) states: “A motion to amend a pleading before trial must:

(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.”

Defendant failed to comply with Rule 3.1324(a)(3). Defendant failed to state specifically, by page, paragraph, and line number, where the additional allegations are to be located.

Cal. Rules of Court, Rule 3.1324(b) requires that the moving party must submit a separate declaration specifying:

“(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.”

Defendant failed to provide a declaration meeting any of the requirements of Rule 3.1324, whatsoever. The declaration submitted in connection with the motion is completely silent as to any of the elements noted above. (Decl., Mayra J. Marin, ¶¶ 1-5.)

Therefore, Defendant’s Motion for Leave to File Amended Answer is denied without prejudice.

Plaintiff is ordered to give notice of this ruling.