Judge: Kerry Bensinger, Case: 22STCV15063, Date: 2023-09-13 Tentative Ruling

Case Number: 22STCV15063    Hearing Date: September 13, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     September 13, 2023                           TRIAL DATE:  November 3, 2023

CASE:                                Igor Humberto Rubio Davila v. California Truck Driving Academy, LLC, et al.

CASE NO.:                 22STCV15063

MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

MOVING PARTY:               Plaintiff Igor Humberto Rubio Davila

RESPONDING PARTY:     Defendants California Truck Driving Academy, LLC, Tae Joon Kim and Son A. Kim, Trustees of the Tae Joon Kim and Son A. Kim Trust

I.          INTRODUCTION

On May 6, 2022, Plaintiff, Igor Humberto Rubio Davila, initiated this action against Defendants, California Truck Driving Academy, LLC, Tae Joon Kim and Son A. Kim, Trustees of the Tae Joon Kim and Son A. Kim Trust, for injuries Plaintiff sustained when he tripped on a piece of rebar protruding out of the floor of Defendants’ premises.  Plaintiff asserts causes of action for Negligence and Premises Liability.

On July 14, 2023, Plaintiff filed this motion for leave to file the First Amended Complaint.  Plaintiff seeks to add a cause of action for Gross Negligence.

Defendants oppose and Plaintiff replies.

II.        LEGAL STANDARD 

            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 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.)¿ 

III.       APPLICATION

Plaintiff argues leave should be granted to file the proposed first amended complaint because counsel recently learned through discovery of the facts requiring the addition of a cause of action for gross negligence.  In support, Plaintiff offers portions of the deposition testimony from California Truck Driving Academy’s person most qualified and the declaration of plaintiff’s counsel to satisfy the requirements of California Rules of Court, rule 3.1324, subdivision (b).

Although leave to file an amended pleading is granted liberally, on the facts presented herein, Plaintiff is not entitled to such an order.  “The failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend.”  (California Cas. Gen. Ins. Co. v. Superior Ct. (1985) 173 Cal.App.3d 274, 280.)  Here, Plaintiff seeks leave to add a cause of action for gross negligence.  However, gross negligence is not a cause of action.  “Gross negligence is a subspecies of negligence; it is not a separate tort.  (Joshi v. Fitness Int'l, LLC (2022) 80 Cal.App.5th 814, 825.)  Leave is also not warranted for the additional reason that the allegations Plaintiff seeks to add in support of the proposed gross negligence cause of action do not sufficiently plead gross negligence.  “ ‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or “an extreme departure from the ordinary standard of conduct.”  (City of Santa Barbara v. Superior Ct. (2007) 41 Cal.4th 747, 754.)  Far from pleading conduct constituting the “want of scant care” or “an extreme departure from the ordinary standard of conduct,” Plaintiff merely copies the allegations supporting her negligence cause of action and re-asserts them in support of the proposed cause of action for gross negligence.  There are no newly discovered facts alleged.

IV.       CONCLUSION

            Accordingly, the motion for leave to file the First Amended Complaint is DENIED without prejudice. 

Moving party to give notice. 

Dated:   September 13, 2023                                   ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.