Judge Jill Feeney, Case 19STCV44013 2023-01-03 Tentative Ruling

On December 6, 2019, Plaintiff Veronica Pellot filed a complaint against her employer, Defendant Latinas Cleaning Services, Esteban Yoshiaki, Naoki Yoshiaki Bailon, Megan Risdon, and Does 1 to 100 alleging causes of action for negligence and premises liability arising from a slip and fall accident which took place on November 23, 2018.

Defendants argue that Plaintiff’s motion fails to comply with the mandatory requirements of California Rules of Court, Rule 3.1324(b). Additionally, Defendants argue that serving amendments to statements of damages against three Defendants who are not in default serves no purpose and does nothing in the furtherance of justice.

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.)¿

Plaintiff seeks to amend her Complaint to reflect the Doe Amendment naming Megan Risdon as a defendant in this action. This request is denied because it is unnecessary. Plaintiff already filed a Doe Amendment in July 2020 and it is unnecessary to file an additional amendment.

In personal injury actions, the amount of damages claimed may not be stated in the complaint. (Code Civ. Proc., section 425.10(b).) Plaintiff must serve a statement of damages on a defendant before default may be entered, even if the defendant has not requested the statement. (Code Civ. Proc., section 425.11(c).) If a statement of damages was not served on a party against whom default was entered, default is invalid. (Department of Fair Employment & Hous. v Ottovich (2014) 227 CA4th 706, 712.) A defendant is entitled to actual notice of the liability to which the defendant may be subjected in a reasonable time before default may be entered. (Schwab v Rondel Homes, Inc. (1991) 53 C3d 428, 435.) The purpose of a statement of damages is to give defendants one last chance to respond with notice of the judgment which may be entered against them if they fail to appear. (Stevenson v. Turner (1979) 94 CA3d 315, 319.)

A defendant may request a statement of damages at any time. (Code Civ. Proc., section 425.11(b).) The statement of damages and any request for a statement of damages need not be filed with the court unless a plaintiff is seeking default judgment. (Cal. Rules of Court, Rule 3.250(a)(20).) The statement of damages is not a limit to recovery if a defendant is not in default. (Damele v. Mack Trucks, Inc. (1990) 219 CA3d 29, 42.) The jury may award any amount supported by evidence at trial. (Id.)

Here, only Megan Risdon is in default. There is no requirement that Plaintiff seek leave of court to serve an updated statement of damages on Risdon. The objective is to ensure Risdon has notice of the judgment that may be entered against her. However, the Court notes that if Plaintiff serves the updated statement of damages, the default currently entered against Risdon is invalid and Plaintiff must again request an entry of default 30 days after service of the statement of damages. (Plotitsa v. Sup.Ct. (Kadri) (1983) 140 CA3d 755, 761.)

With respect to the remaining Defendants, there is again no requirement that Plaintiff seek leave of court to serve an updated statement of damages. There is no requirement that the statement of damages be filed with the Court for non-defaulting parties and the statement does not limit recovery at trial. Thus, Plaintiff is free to amend the statement of damages without leave of court.