Judge: Jon R. Takasugi, Case: 20STCV39385, Date: 2022-09-15 Tentative Ruling

Case Number: 20STCV39385    Hearing Date: September 15, 2022    Dept: 17

                                         Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiff Yen Lieu’s Motion for Leave to File First Amended Complaint is DENIED.

            On October 13, 2020, Plaintiff Yen Lieu filed a complaint against Defendant American Honda Motor Co., Inc. for (1) violation of Song-Beverly Act – breach of express warranty, (2) violation of Song-Beverly Act – breach of implied warranty, (3) violation of the Song-Beverly Act section 1793.2, (4) fraudulent inducement – concealment.

            Plaintiff now moves for leave to file a First Amended Complaint (“FAC”).  

Legal Standard

Pursuant to CCP section 473(a)(1), “[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.”  (Code Civ. Proc., § 473(a)(1).)

“Trial courts are vested with the discretion to allow amendments to pleadings ‘in furtherance of justice.’  [Citation.]  That trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state since 1901.  [Citations.]”  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.)  The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation.  (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.)

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 the 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.  (Cal. Rules of Court, rule 3.1324(a).) 

A separate declaration must also 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.  (Cal. Rules of Court, rule 3.1324(b).)

Discussion

Untimely Opposition

Defendant filed an opposition on September 12, 2022.  Based on the September 15, 2022 hearing date, any opposition to this motion had to be filed by September 1, 2022.  (Code Civ. Proc., § 1005(b).)  Defendant’s opposition is thus untimely. 

Defendant has acknowledged the opposition is untimely and filed an ex parte application seeking leave to file a late opposition.  The Court denied Defendant’s ex parte application on September 14, 2022.  The Court thus does not consider Defendant’s late-filed opposition in ruling on this motion.

Motion

            Plaintiff seeks leave to file an FAC to correct the incorrectly alleged transmission defect that forms the basis for the fraud cause of action.  Plaintiff explains that at the time the initial complaint was filed, Plaintiff believed the problems with the transmission were caused by the torque converter lock up clutch that existed as part of the 6-speed transmission.  Plaintiff indicates that it has recently come to light that the subject vehicle is equipped with a 9-speed transmission.  Plaintiff thus seeks leave to bring forth details regarding the correct model transmission with which the subject vehicle was equipped, the defective nature of the transmission, and Defendant’s concealment of said defect.  Plaintiff states that the nature of the concealment alleged by Plaintiff against Defendant remains the same, but the amendments are to prevent Defendant from using Plaintiff’s technical misunderstanding of the type of transmission in the vehicle as a means of evading liability.  Plaintiff asserts that this motion was filed as soon as the error was discovered.

            Plaintiff has generally complied with CRC Rule 3.1324.  However, the Court finds Plaintiff has not sufficiently explained when the facts giving rise to the error in the transmission model were discovered.  Plaintiff’s vague assertion that this motion was filed as soon as the error was discovered is insufficient.

The Court notes that, contrary to Plaintiff’s claim that the subject vehicle being equipped with a 9-speed transmission has just recently come to light, the issue with the transmission model has been an ongoing issue in this action for months and has been brought up by Defendant in the last few court appearances.  In fact, that the subject vehicle was equipped with a 9-speed transmission was brought up as early as May 11, 2021, when Defendant served its responses to Plaintiff’s request for production of documents.  (Dreblow Decl. In Support of Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents filed on 9/24/21, ¶ 7, Ex. B, Defendant’s Response to Request for Production of Documents, Set One, Nos. 77, 79.)  It thus appears Plaintiff had notice that the subject vehicle was equipped with a 9-speed transmission as early as May 2021. 

Even assuming Plaintiff did not have notice that the subject vehicle contained a 9-speed transmission from Defendant’s May 11, 2021 responses, the Court notes that, in ruling on Plaintiff’s motion to compel further responses on April 5, 2022, the Court specifically indicated that Plaintiff’s definition of transmission defect was limited to only those issues with the 9-speed automatic transmission in the subject vehicle.  (4/5/22 Minute Order.)  Thus, at the very least, Plaintiff had notice that the subject vehicle was equipped with a 9-speed transmission by April 5, 2022.

Despite having notice that the subject vehicle was equipped with a 9-speed transmission by at least April 5, 2022, if not earlier in May 2021, Plaintiff did not bring a motion for leave to amend until just recently on August 16, 2022.  Plaintiff has offered no explanation for why the motion was not brought earlier.  Based on this, the Court finds the motion is untimely.

The Court also finds a granting of this motion would prejudice Defendant.  As discussed, Plaintiff has had knowledge that the subject vehicle was equipped with a 9-speed transmission for months, if not for over a year.  Despite such knowledge, Plaintiff waited until Defendant filed its motion for summary judgment just a month ago on August 8, 2022 before bringing this motion to for leave to amend.  Again, there is no explanation offered for the delay in seeking leave to amend.  Given that the filing of an FAC would moot Defendant’s motion for summary judgment, Plaintiff has offered no explanation for the delay in seeking leave to amend, and trial is currently set for November 28, 2022 such that Defendant would not have another opportunity to file another motion for summary judgment, the Court finds that permitting Plaintiff to file an FAC in this case would unduly prejudice Defendant.

As the motion is untimely and Defendant would be unduly prejudiced if Plaintiff is permitted to file an amended complaint at this stage of the action, Plaintiff’s motion for leave to file a First Amended Complaint is denied.

It is so ordered.

Dated:  September    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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