Judge Kerry Bensinger, Case 21STCV30976 2023-04-25 Tentative Ruling

On August 20, 2021, Plaintiff Donna Diaz filed this action against defendants Rodeo Collection, LTD. (“Rodeo Collection”) and Specialized Elevator Services, LLC (“Specialized Elevator”) for injuries Plaintiff allegedly sustained when tripping and falling as she entered an unleveled elevator at the Rodeo Collection at 421 North Rodeo Drive. Plaintiff asserts a cause of action for premises liability against both defendants and negligent hiring against Rodeo Collection only.

On December 21, 2022, Plaintiff this motion for leave to amend her Complaint. Plaintiff seeks to assert a third cause of action for common carrier negligence against both 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) 47 Cal.App.4th 1024, 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 the complaint, 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.)

Plaintiff argues leave to amend should be granted because the proposed amendments are based on the same set of facts and will not delay the trial or necessitate additional costs. (See Suri Decl.)

Rodeo Collection contends (1) Plaintiff has failed to explain the reason for the delay in seeking leave to amend and (2) leave to amend would prejudice Rodeo Collection because it has relied on the original case and causes of action in evaluating potential exposure. Additionally, leave to amend would necessitate a trial continuance and additional discovery.

In reply, Plaintiff argues that the proposed cause of action for common carrier negligence will not require either defendant to conduct additional discovery. Plaintiff further represents that she will not seek a trial continuance.

Rodeo Collection makes several goods points about Plaintiff’s failure to adequately explain and justify the delay. Notwithstanding this deficiency, the Court finds that prejudice will not result from granting Plaintiff leave to amend the complaint. Rodeo Collection argues that trial will be delayed, and additional discovery will be necessary. But given Plaintiff’s proposed cause of action arises from the same set of facts and Plaintiff’s assertion that she will not seek a trial continuance, the basis for Rodeo Collection’s claim of prejudice is undermined. Nor is it so clear that an additional cause of action also sounding in negligence would require additional discovery. Absent prejudice, the Court is guided by the public policy to grant leave to amend liberally. (Centex Homes, supra, 237 Cal.App.4th at p. 32.)

Based on the foregoing, Plaintiff’s motion is GRANTED. Plaintiff is ordered to file and serve the proposed pleading within five 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.

Hon. Kerry Bensinger

Judge of the Superior Court