Judge: Kerry Bensinger, Case: BC719964, Date: 2023-08-21 Tentative Ruling

Case Number: BC719964    Hearing Date: August 21, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 21, 2023                                 TRIAL DATE:  N/A

CASE:                                Camellia Gharapanianse v. City of Los Angeles

CASE NO.:                 BC719964

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

MOVING PARTY:               Plaintiff Camellia Gharapanianse

RESPONDING PARTY:     No opposition

            On August 29, 2018, Plaintiff, Camellia Gharapanianse, filed this action in pro per against Defendant, City of Los Angeles, for injuries arising from a slip and fall on Defendant’s property.  On April 5, 2022, Plaintiff filed the First Amended Complaint (“FAC”).  Default was entered against Defendant as to the FAC on December 29, 2022.

            On August 14, 2023, Plaintiff filed this motion for leave to file a Second Amended Complaint (“SAC”) to add the County of Los Angeles as a defendant and to add facts and causes of action for violations of Government Code section 815 and 835, among other things.

                        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 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.       DISCUSSION

            The motion complies with the requirements of California Rules of Court, rule 3.1324, subdivision (a).  Accordingly, the unopposed motion for leave to file a second amended complaint is GRANTED.

IV.       CONCLUSION

            The motion is granted.  Plaintiff is directed to file the Second Amended Complaint within 10 days of this order and personally serve the amended pleading on the defendants.  (See Engebretson & Co., Inc. v. Harrison (1981) 125 Cal.App.3d 436, 442-443.)

            Moving party to give notice, unless waived.

Dated:   August 21, 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.