Judge: H. Jay Ford, III, Case: 21STCV06205, Date: 2023-01-17 Tentative Ruling

Case Number: 21STCV06205    Hearing Date: January 17, 2023    Dept: O

1-17-23 21STCV06205 BONNIE PAN, AN INDIVIDUAL vs CITY OF MALIBU, A GOVERNMENT ENTITY, et al.

Plaintiff's Motion for Leave to Amend is GRANTED.

“Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown.”  P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345.  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 Id.  (leave to amend properly denied where plaintiff offered no explanation for one-year delay in seeking leave to amend, amendment was requested after trial readiness conference, amendment would require additional discovery and amendment would likely trigger a demurrer or other pretrial motions); 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”).

The trial date in this action is set for 8-21-23.  The action has been pending since 2-17-21.  

Plaintiff filed a declaration pursuant to CRC Rule 3.1324 detailing the nature of the amendments:  

1. Caption changed to reflect the additional cause of action for negligence which merely clarifies the original cause of action for negligence against Burns Pacific and Venco; 

2. New paragraphs inserted at Paragraphs 8-9 in the General Allegations, which merely identify Burns Pacific as DOE 1 and Venco as DOE 2 and also set forth basic facts which establish jurisdiction; 

3. New paragraphs inserted at paragraphs 11 and 12 which merely clarify that Burns Pacific and Venco were the independent contractors who were hired by the city of Malibu to provide vegetation trimming and/or maintenance and street sweeping services at the Subject Location; 

4. Fourth Cause of Action for General Negligence added as Paragraphs 42-48 against Burns Pacific and Venco which merely clarifies the original cause of action for negligence against those defendants.

5. Subsequent paragraph numbers and DOE amendment numbers are adjusted in accordance

with the foregoing throughout the FAC.  See Motion, Dec. of C. Nickerson, para. 5.  

Plaintiff does not identify when she discovered the facts prompting the amendment and why the amendment was not made sooner.  CRC Rule 3.1324(b) requires a declaration setting forth both facts.

Defendant Burns-Pacific opposes the motion on grounds of undue delay and prejudice.  Defendant submits evidence that Plaintiff knew of Defendant's identity by 7-6-21, when she received discovery responses from the City identifying Burns-Pacific as the independent contractor who trimmed the trees in the area where Plaintiff was injured.  See Dec. of S. Santa Cruz, paras. 4-5.  Defendant argues it will be prejudiced by the amendment, because it exposes Defendant to direct liability.  Defendant argues the amendment expands the scope of factual and legal issues and increases the burden of discovery.  Id. at para. 13.  

However, the trial date is approximately 7 months away and the trial date can be continued if necessary.  The motion is not being sought on the eve of trial.  Moreover, Plaintiff filed a DOE amendment naming Burns-Pacific on 2-15-21, approximately 7 months after first learning of Burns Pacific's identity.  Allegations against DOE 1 were included in the original complaint.  Given these facts, Plaintiff did not unduly delay in amending the complaint to name Burns-Pacific as DOE 1.  

Leave to amend is liberally granted and undue delay alone is insufficient to justify denial.  The opposing party must establish clear prejudice based on that delay.  The facts do not establish either undue delay or prejudice as a result of the amendment.  The motion for leave to file a FAC is GRANTED.