Judge Jill Feeney, Case 19STCV37386 2022-10-03 Tentative Ruling

This is a negligence action arising out of a motorcycle accident allegedly caused by a pothole. Plaintiff Eric Hickman (“Plaintiff”) alleges that he was riding a friend’s motorcycle when a pothole caused the vehicle to rotate forward, throwing him from the vehicle onto the pavement. Plaintiff alleges the pothole was on property owned and controlled by the City of Torrance (“Defendant”).

On October 18, 2019, Plaintiff filed his complaint against Defendants and Does 1 through 20. Plaintiff’s complaint contains two causes of action: (1) premises liability and (2) negligence of a public entity. Plaintiff seeks damages for lost income, medical expenses, and pain and suffering.

Defendant seeks to amend its answer in order to add an affirmative defense under Cal. Civil Code section 3333.4 (Proposition 213) in light of new information learned during the deposition testimony of Plaintiff’s expert on August 25, 2022. Defendant alleges Plaintiff was operating a different motorcycle than the one previously identified. The other motorcycle was not insured by the policy Plaintiff previously identified.

Plaintiff opposes the motion, arguing that Defendant had access to the information that Plaintiff was operating the 2003 Harley Davidson Motorcycle 27 months ago. The motorcycle was identified in a Torrance Police Call Report produced by Defendant in discovery in early 2021.

Additionally, Plaintiff claims he will be prejudiced by the delay in Defendant bringing its motion because he will lack the opportunity to conduct discovery on the 2003 motorcycle. Plaintiff also argues the amendment would cause significant delays in trial.

Defendant argues that it did not bring this motion earlier because it relied on Plaintiff’s repeated representations that he was driving a 2004 Harley Davidson at the time of the incident. Defendant also argues that Plaintiff will not be prejudiced by the amendment because he waived his damages arguments with regard to his brain injuries and wage loss. Additionally, there is no further discovery for Plaintiff to perform regarding the motorcycle he was driving.

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.

Under California Rule 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.

California Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “[t]he 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.) 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].)

Under California Rules of Court 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 California Rule of Court 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.)¿

Defendant seeks to add an affirmative defense under Cal. Civ. Code section 3333.4. A defense under that section would preclude Plaintiff from raising non-monetary damages including pain and suffering, inconvenience, physical impairment, disfigurement, and other damages because Plaintiff’s motorcycle is uninsured. Plaintiff opposes Defendant’s motion on the grounds that its delay in bringing the motion was inexcusable.

The evidence shows that Defendant’s delay was not due to a lack of diligence in discovering the facts or in offering the amendment after knowledge of them. Defendant alleges that Plaintiff has represented throughout this matter that he was driving a 2004 Harley Davidson owned by Mark Kaake and insured by Pacific Specialty Insurance Company. (Sellers Decl., ¶5.) In August 2022, Plaintiff’s own retained accident reconstruction expert explicitly stated Plaintiff was driving a 2003 Harley Davidson that was uninsured. (Id., ¶¶3, 11; Yates Depo. 31:23-32:1.) Defendant alleges it brough this motion after deposing Plaintiff’s expert witness and discovering this new information. (Sellers Decl.., ¶12.)

Plaintiff’s arguments that Defendant should have known about the 2003 Harley Davidson 27 months ago fail because Defendant reasonably relied on Plaintiff’s Complaint, written discovery responses, and deposition testimony. Plaintiff’s Complaint, FAC, and SAC all state that Plaintiff was operating the 2004 Harley Davidson. Before filing its answer, Defendant propounded discovery to determine whether Plaintiff’s motorcycle was insured. (Id., ¶7.) Plaintiff responded in May 2020 that he was driving a 2004 Harley Davidson that was insured. (Id., ¶8.) Because Plaintiff’s discovery responses were served in May 2020, Defendant would not have had the information necessary to determine if a defense under Civ. Code section 3333.4 was viable.

It appears that Defendant did have access to a Torrance Police Call Detail Report listing the 2003 Harley Davidson as the motorcycle involved in the accident at least as early as 2021 when Defendant produced the report to Plaintiff during discovery. In this instance it appears that Defendant either overlooked this information by mistake or believed it to be a mistake (given that the various complaints filed by Plaintiff and the discovery responses provided stated that Plaintiff was riding a 2004 Harley Davidson that was insured) until Plaintiff’s expert used the 2003 motorcycle as the basis of the expert’s analysis of the case. Either way, the Court does not find that Defendant has been dilatory.

Plaintiff argues that he will be prejudiced because the amendment would require him to complete further discovery some of which may not be available so long after the accident at issue took place. (Opp., p.8.) However, if Plaintiff was driving the 2004 motorcycle (as he contends) this is a nonissue. If Plaintiff was not driving that motorcycle, then Plaintiff was aware of this issue all along. Moreover, Plaintiff had the Call Detail Report in its possession in early 2021 and was on equal notice as Defendant as to the information contained therein. Moreover, the Court will permit a continuance, if sought, to permit both sides to get to the bottom of this important factual issue.

Plaintiff also argues the amendment would force Plaintiff to withdraw his stipulation to waive damages demands for his brain injuries, loss of past and future earnings, and other special damages. Plaintiff claims he would not have given up such a large portion of special damages if he knew of the 3333.4 defense.

Any decision by the parties as to how to handle the stipulation in light of this potential defense remains in their hands. This does not impact the decision of the Court.

It seems to the Court that perhaps all counsel on both sides missed this wrinkle in the facts. It is in the interests of justice for both sides to be able to reset their positions and conduct further discovery with respect to this one issue which is of great importance to both sides.