Judge Kerry Bensinger, Case Number: BC713837, Date: 2023-09-19 Tentative Ruling

Judge: Kerry Bensinger, Case: BC713837, Date: 2023-09-19 Tentative Ruling

Case Number: BC713837 Hearing Date: September 19, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: September 19, 2023 TRIAL DATE: October 25, 2023

CASE: Samantha Fagen v. Alfredo Boulton, et al.

CASE NO.: Fagen v. Boulton BC713837

MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER

MOVING PARTY: Defendants Andres Boutlon and Gianmar Molero de Boulton

RESPONDING PARTY: No opposition

I. INTRODUCTION

On July 13, 2018, Plaintiff, Samantha Fagen, initiated this action against Defendants, Alfredo Boulton (“Alfredo”), Andres Boulton (“Andres”), and Gianmar Molero De Boulton (“Gianmar”), for injuries arising from a multi-vehicle accident. Alfredo was the driver of the vehicle who allegedly caused the accident. Andres and Gianmar are Alfredo’s parents and the owners of the vehicle driven by Alfredo. Defendants filed an Answer to the Complaint on August 21, 2018

On February 2, 2022, Defendant Alfredo Boulton filed for bankruptcy. The proceedings in this matter were stayed pursuant to the bankruptcy until November 15, 2022.

On August 10, 2023, Andres and Gianmar (hereafter, “Defendants”) filed this motion for leave to file a First Amended Answer. The proposed First Amended Answer is also separately filed. With the amended pleading, Defendants seek to sever their Answer from Alfredo and to add two affirmative defenses.

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

Defendants seek leave to file the proposed First Amended Answer for two reasons: (1) Defendants wish to add as affirmative defenses that Alfredo exceeded the scope of use of the vehicle and preemption based upon the Bankruptcy Court’s Orders; and (2) Andres and Gianmar later became separately represented. Further, filing the proposed amended answer (which is attached to thus motion and has been filed separately with the Court) will not necessitate added costs or delay trial. As such, Defendants contend it is in the interests of justice that leave be granted to file the proposed First Amended Answer.

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 Answer.

IV. CONCLUSION

The motion for leave to file the First Amended Answer is GRANTED. The First Amended Answer is deemed filed on August 10, 2023.

Moving party to give notice.

Dated: September 19, 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.