Judge Kerry Bensinger, Case Number: 21STCV04367, Date: 2023-09-25 Tentative Ruling

On February 3, 2021, Plaintiff, Edwin Sargenti, initiated this premises liability action against Defendants, City of Long Beach (“City”) and ASM Global[1]. Plaintiff filed the operative First Amended Complaint (“FAC”) on March 22, 2021. Plaintiff alleges he was riding a Lime scooter and attempted to use the driveway at or near 202 E. Shoreline Drive (the “Premises”) when he fell due to a hazardous condition in the driveway. Plaintiff alleges Defendants owned the Premises. The FAC alleges a single cause of action for dangerous condition of public property against the City.

On April 21, 2021, City filed an Answer to Plaintiff’s FAC. On the same day, the City filed a Cross-Complaint against Roes 1-30 for equitable indemnity, apportionment, and contribution.

On August 30, 2023, City filed these motions for leave to file an amended Answer and for leave to amend its Cross-Complaint to substitute ASM Global and the Grand Prix Association of Long Beach as Roe cross-defendants.

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.)¿

Generally, leave is liberally granted at any stage of the proceedings unless inexcusable delay and probable prejudice to the opposing party is shown.¿¿(Magpali, supra, 48 Cal.App.4th at p. 487.)

City seeks leave to file the proposed First Amended Answer to add affirmative defenses, including applicable immunities under the Government Code and contractual defenses pursuant to the User Agreement Plaintiff entered into to rent the Lime scooter.

Plaintiff contends the motion should be denied because the City has not explained the reason for the delay in seeking to amend its Answer. Further, Plaintiff contends he will be prejudiced if City is given leave to amend. City struggles to explain the reason for the delay. According to the declaration of defense counsel, Tania Ochoa, City’s current counsel substituted into the case on March 14, 2023 and thereafter, conducted a thorough review of the record and concluded additional defenses had not been pled. (Motion for Leave to File An Amended Answer, Ochoa Decl., ¶ 7.) Absent from Ms. Ochoa’s declaration is any explanation why City waited six months to seek leave to amend. Moreover, it is not clear why City did not plead the affirmative defenses it now seeks to include when City filed its initial Answer on April 21, 2021 (other than prior counsel failed to plead them). Immunity defenses under the Government Code were available at the time of the filing of City’s Answer. As to the User Agreement between Plaintiff and Lime, Plaintiff’s FAC makes clear he was riding a Lime scooter at the time of the incident. (See Green v. Rancho Santa Margarita Mortg. Co. (1994) 28 Cal.App.4th 686, 693-694 (leave to amend properly denied where no excuse was offered to explain the failure to assert the defense originally).) While the City does not provide a an entirely satisfactory explanation for the delay, that is not the end of the analysis. The Court must also consider prejudice.

Plaintiff fails to establish he will suffer prejudice if leave is granted. Plaintiff contends granting leave will allow City to retroactively bolster its summary judgment motion which is based, in part, on contractual defenses City has not previously pled. Plaintiff further contends granting City leave to amend will force Plaintiff to meet affirmative defenses after Plaintiff’s opposition to the summary judgment motion is due. However, Plaintiff has already filed his opposition to City’s summary judgment motion. A review of the opposition reveals Plaintiff engages in and discusses City’s contractual defenses and why they are insufficient to merit summary judgment. Given Plaintiff’s apparent ability to contend with City’s contract-based defenses, Plaintiff’s purported prejudice is unfounded. Plaintiff further contends the proposed affirmative defenses will require additional discovery and delay trial even further but does not otherwise explain what additional discovery is needed or the extent of the delay.[2]

Given the liberal policy of allowing amendments prior to trial and the overall importance of adjudicating cases on the merits, the Court grants City’s motion for leave to file its proposed amended Answer.

City also seeks leave to amend its cross-complaint to substitute ASM Global and Grand Prix Association of Long Beach as Roe defendants. City argues it has diligently sought information to establish the proposed cross-defendants’ liability and only learned in late June 2023 of ASM Global and Grand Prix Association involvement. In the declaration of City’s person most knowledgeable, Willie Owens, Mr. Owens states that in late June of 2023, “Dwight Tanaka, Vice President and Director of Operations for the Grand Prix, informed [Owens] that a potential employee or representative of ASM asked the Grand Prix to move the subject barrier to the subject location on the City sidewalk.” (Owens Decl., ¶ 4.)

City delayed in seeking leave to add ASM Global and Grand Prix as cross-defendants. As Plaintiff points out, City has known of ASM Global and Grand Prix’s potential liability from the outset of the case. Plaintiff originally named ASM Global as a defendant before dismissing ASM Global without prejudice. City does not dispute that ASM Global and Grand Prix maintained the subject premises and that City had contractual agreements with ASM Global and Grand Prix predating the subject incident. Additionally, the only new information upon which City builds its argument for leave to amend are the statements made by Mr. Tanaka to Mr. Owens. Otherwise, City was in a position previously to proceed and dd not.

Nonetheless, Plaintiff fails to demonstrate sufficient prejudice to overcome the liberal policy of allowing amendment and the importance of adjudicating matters on the merits. Plaintiff argues he may be subject to further and duplicative discovery but does not otherwise explain the prejudice. And, even assuming additional discovery and time are needed, Plaintiff does not demonstrate how that prejudices the adjudication on the merits of the case. “Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.) City is entitled to an order granting leave to amend its cross-complaint.

The motion for leave to file an amended answer is GRANTED. Defendant City of Long Beach is directed to file its proposed amended answer within 5 court days of this order.

The motion for leave to amend the cross-complaint is GRANTED. Defendant City of Long Beach is directed to file its proposed amended cross-complaint within 5 court days of this order.

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] Dismissed without prejudice on August 31, 2022.

[2] The Court additionally notes that this case is on-track to reach trial well before the five-year statutory deadline. (See Code Civ. Proc., § 583.310.)