Judge Kerry Bensinger, Case Number: 21STCV12551, Date: 2023-10-05 Tentative Ruling

On April 2, 2021, Plaintiff, Frank Perez, initiated this action against Defendant, Carparts.com (erroneously sued as “Carparts.com, Inc.”), for injuries arising from a March 23, 2021, fall from an “order picker” at Defendant’s warehouse in Grand Prairie, Texas. Plaintiff was in the course and scope of his employment for Defendant’s subcontractor, labor management company nGroup Performance Partners (“nGroup”) and was working in Defendant’s auto parts warehouse.

On May 19, 2023, Plaintiff filed a First Amended Complaint (“FAC”) for (1) Negligence, (2) Willful Failure to Warn, (3) Dangerous Condition of Public Property, and (4) Premises Liability. Defendant answered the FAC on July 18, 2023.

On April 4, 2022, Defendant filed a First Amended Cross-Complaint against nGroup for indemnity, breach of contract, and declaratory relief.

On July 25, 2023, Plaintiff attempted to file the Second Amended Complaint (SAC”). The pleading was rejected on August 1, 2023 for failure to obtain leave of court.

On August 16, 2023, Plaintiff filed a Motion for Leave to File A Second Amended Complaint.

On July 19, 2023, Defendant filed a Motion for Judgment on the Pleadings as to the FAC. Defendant filed an Amended Motion for Judgment on the Pleadings on August 9, 2023.

The Court heard Plaintiff’s Motion for Leave to Amend and Defendant’s Motion for Judgment on the Pleadings on October 5, 2023. The Court found Plaintiff did not unreasonably delay in seeking leave to amend and that prejudice would not result from granting the motion. As such, the Court was inclined to grant Plaintiff’s Motion for Leave to Amend. However, due to procedural defects, the Court continued the hearing for the Motion for Leave to Amend. Further, because granting Plaintiff’s motion would effectively moot Defendant’s Motion for Judgment on the Pleadings, the Court also continued the hearing for Defendant’s motion. The Court also indicated it would hear Plaintiff’s motion prior to Defendant’s motion.

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.)¿¿

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057 1064.) The court must assume the truth of all properly pleaded material facts and allegations, but not contentions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Wise v. Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738.) “A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).)” (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.) “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. [Citation.]” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Allegations are to be liberally construed. (Code Civ. Proc., § 452.)

If the motion for judgment on the pleadings is granted, it may be granted with or without leave to amend. (Code Civ. Proc., § 438, subd. (h)(1).) “Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852 (emphasis added).)

Plaintiff seeks leave to file a Second Amended Complaint (“SAC”) to correct an error in Paragraph 17 of the FAC. Paragraph 17 of the FAC alleges:

“Defendant, CARPARTS.COM, INC., in employing PEREZ, recognized that the work contracted to be performed was likely to create, during its progress, a peculiar or special risk of harm to others, such as plaintiff, unless special precautions were taken.”

Plaintiff states this is the sole allegation identifying Plaintiff as an employee of Defendant. The FAC otherwise prominently states Plaintiff was an employee of nGroup. (FAC, ¶¶ 5, 21.) Plaintiff also points out that Defendant’s First Amended Cross-Complaint (“FACC”) also refers to nGroup as Plaintiff’s employer. (FACC, ¶ 4.)

Plaintiff seeks to strike Paragraph 17 of the FAC and include the following proposed amendment in its place:

“Defendant, CARPARTS.COM, INC., in line with their labor contract with nGroup, had an obligation to provide a safe environment for nGroup's employees and that the work contracted to be performed was likely to create, during its progress, a peculiar or special risk of harm to others, such as plaintiff, unless special precautions were taken., CARPARTS.COM, INC., knew that it was required to provide equipment that was safe and in working condition, but failed to do so. As a direct result, Defendant affirmatively contributed to Plaintiff PEREZ’s injuries.”

The effect of the amendment would “conform the parties mutual understanding of the facts concerning the relationship of all litigants.” (Henley Decl., ¶ 5.) This also accords with Plaintiff’s original form Complaint. There, Plaintiff alleged that he “was in the course of his employment for a subcontractor under the control of Defendant [Carparts.com, Inc.] and was working in one of Defendant’s auto parts warehouses on an elevated “cherry picker” used to reach upper shelves where inventory is stored.” (Complaint, p. 4.) The point being that Plaintiff was nGroup’s employee. Further, the amendment is necessary because Plaintiff will suffer prejudice if leave is denied. (Henley Decl., ¶ 5.) If Paragraph 17 is left uncorrected, it would “eviscerate[] Plaintiff’s cause of action based on the statutes barring suit against employers insured by workers compensation insurance.” (Motion, p. 5:10-12.)

In Plaintiff’s Amended Motion, Plaintiff’s counsel explains he discovered the pleading error between May 19, 2023 (when the FAC was filed) and July 25, 2023 (when the SAC was filed without leave of court). Plaintiff’s counsel further explains that he informed defense counsel on July 24, 2023 of their intent to file a SAC, and defense counsel expressly stated “we have no objection to Plaintiff filing the proposed second amended complaint” if Plaintiff removed the request for attorney’s fees from the proposed SAC. (Amended Motion, Henley Decl., ¶¶ 3, 4, 7, 8.) The request for attorney’s fees does not appear in the proposed SAC. Presumably, Plaintiff did not seek leave to amend earlier because defense counsel did not object to the proposed SAC. Plaintiff demonstrates having diligently sought leave to amend and doing so when it became clear leave of court was required. Plaintiff has cured the procedural defect noted in the Court’s previous order. [1]

Defendant argues that allowing Plaintiff to file the proposed SAC would provide a moving target for Defendant’s summary judgment motion, which Defendant has already filed. However, Defendant does not explain how Plaintiff’s sole proposed amendment to Paragraph 17 of the FAC would prejudice the merits of Defendant’s summary judgment motion. After all, notwithstanding Paragraph 17, the FAC clearly alleges Plaintiff to be nGroup’s employee. This is consistent with the parties’ understanding of the relationship between Plaintiff, Defendant, and nGroup as evidenced by Defendant’s First Amended Cross-Complaint. (See, e.g., FACC, ¶ 5.) Under these facts, there is no inexcusable delay or prejudice that would result from granting Plaintiff leave to file the proposed SAC.[2]

Based on the foregoing, Plaintiff’s Motion for Leave to File the Second Amended Complaint is GRANTED. Plaintiff is to file the Second Amended Complaint within five days of the date of this order. Given the Court’s ruling granting Plaintiff’s motion, the Court will hear from counsel regarding the need for further briefing on Defendant’s Motion for Judgment on the Pleadings.

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] Defendant also pointed out in its opposition that Plaintiff did not discuss when the facts giving rise to the amended allegations were discovered. However, Plaintiff’s proposed amendment does not turn on discovery of nGroup being Plaintiff’s employer. This fact was known before this case was filed, was alluded to in Plaintiff’s original Complaint, and was specifically alleged in Defendant’s Cross-Complaint and First Amended Cross-Complaint. The relevant issue is why the request for amendment was not made earlier.

[2] Defendant mentions Plaintiff’s FAC was improperly filed because Plaintiff had not obtained leave of court. Nor was the FAC rejected for failure to obtain leave of court. But Defendant filed its Answer to the FAC. No issues regarding the filing of the FAC were raised with the Court.