Judge: Kerry Bensinger, Case: 22STCV23959, Date: 2023-10-04 Tentative Ruling

Case Number: 22STCV23959    Hearing Date: October 4, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 4, 2023                                 TRIAL DATE:  January 22, 2024

CASE:                                Wilson Villalta Gutierrez, et al. v. Jose Mendoza

CASE NO.:                 22STCV23959

MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT

MOVING PARTY:               Defendant/Cross-Complainant Jose Mendoza

RESPONDING PARTY:     No opposition

I.          INTRODUCTION

On July 25, 2022, Plaintiffs, Wilson Villalta Gutierrez, and Jeffrey Gomez, a minor, by and through his Guardian Ad Litem, Marta Elizabeth Gutierrez Aparacio, initiated this action against Defendant, Jose Mendoza, for injuries arising from a motor vehicle accident.  Defendant filed an Answer to the Complaint on November 28, 2022.

On December 14, 2022, Defendant filed a cross-complaint against Wilson Villalta Gutierrez for apportionment and partial indemnity. 

On August 30, 2023, Defendant filed this motion for leave to amend his cross-complaint to add Marta Elizabeth Gutierrez Aparacio as a cross-defendant.

The motion is unopposed.

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 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.)¿ 

III.       APPLICATION

Defendant seeks leave to file his proposed First Amended Cross-Complaint which adds Plaintiffs’ mother, Marta Elizabeth Gutierrez Aparacio as Roe 1.  On June 28, 2023, the proposed cross-defendant testified at deposition stating that she allowed Wilson Villalta Gutierrez Aparicio, a minor at the time of the incident, to drive her vehicle while knowing he was unlicensed.  As such, Defendant argues proposed cross-defendant is a necessary party to this action.  Soon after learning of this information, defense counsel reserved the first hearing date available for this motion. 

The motion complies with the requirements of California Rules of Court, rule 3.1342, subdivision (a).  Further, as the motion is unopposed, the Court finds no prejudice will result if leave is granted to file the proposed First Amended Cross-Complaint.

IV.       CONCLUSION

            The motion is GRANTED.  Defendant/Cross-Complainant Jose Mendoza is ordered to file and serve the proposed First Amended Cross-Complaint within 5 court days of this order.

Moving party to give notice. 

Dated:   October 4, 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.