Judge Kerry Bensinger, Case Number: 20STCV29543, Date: 2023-09-27 Tentative Ruling

On August 5, 2020, Plaintiff, Judi Hughes, initiated this action against Defendant, Alvin S. Friedman, for injuries arising from a dog bite. Plaintiff initially sought punitive damages.

On October 16, 2020, Defendant filed a motion to strike punitive damages from the Complaint. The Court granted Defendant’s motion on January 25, 2021, stating Plaintiff did not allege specific facts in the Complaint showing Defendant’s actual knowledge of Plaintiff’s dog’s propensity to bite and attack. The Court further noted Plaintiff could seek leave to amend in the future if she determined through discovery additional facts that could state a prima facie case for punitive damages.

On August 18, 2023, Plaintiff filed this motion for leave to file an amended complaint to add punitive damages. Defendant opposes and Plaintiff replies.

The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect.¿ (Code Civ. Proc., § 473, subd. (a)(1).)¿ “Public policy dictates that leave to amend be liberally granted.”¿ (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.)¿ “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial . . . this policy should be applied only ‘where no prejudice is shown to the adverse party.’¿ [Citation].¿ A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown.¿ [Citation.]” ¿(Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)¿

A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (Cal. Rules of Court, Rule 3.1324, subd. (a).)¿ The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier.¿ (Cal. Rules of Court, Rule 1.324, subd. (b).)¿

In ruling on a motion for leave to amend a pleading, the court does not consider the merits of the proposed amendment, because “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.”¿ (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)¿ While the court may deny leave to amend where the proposed amendment is insufficient to state a valid cause of action or defense, such denial is most appropriate where the insufficiency cannot be cured by further amendment—i.e., where the statute of limitations has expired or the insufficiency is established by controlling caselaw. (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281, disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)¿

This motion is moot. Plaintiff seeks leave to file the proposed First Amended Complaint to reassert a request for punitive damages and to add new factual allegations supporting the request. Defendant represents that he will file another motion to strike the punitive damages request if Plaintiff is granted leave to amend her complaint. With trial less than 30 days away, Defendant argues the trial date must be continued to allow Defendant time to file a motion to strike and to conduct further discovery.[1] In reply, Plaintiff states that if the Court is inclined to grant the motion and continue the trial, Plaintiff withdraws her motion for leave to amend. The Court is inclined to continue the trial date to allow Defendant to file a motion to strike the proposed first amended complaint. As such, this motion is moot.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] A motion to strike must be brought within the time allowed to respond to a pleading. (Code Civ. Proc., § 435, subd. (b)(1).) A motion to strike a complaint or cross-complaint must be brought within thirty (30) days of service of summons. (Code Civ. Proc., § 412.20, subd. (a)(3).)