Judge Lee S. Arian, Case Number: 20STCV13145, Date: 2023-10-27 Tentative Ruling

Judge: Lee S. Arian, Case: 20STCV13145, Date: 2023-10-27 Tentative Ruling

Case Number: 20STCV13145 Hearing Date: October 27, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: October 27, 2023 TRIAL DATE: January 23, 2024

CASE: Zahra Nikfarjam v. United Realty & Management, Inc., et al.

CASE NO.: 20STCV13145

MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT

MOVING PARTY: Defendant/Cross-Complainant 7-Eleven, Inc.

RESPONDING PARTY: No opposition

I. INTRODUCTION

On March 19, 2020, Plaintiff, Zahra Nikfarjam, initiated this action against Defendants, United Realty & Management, Inc. (“URMI”) and 7-Eleven, Inc. (“7-Eleven”), arising from a trip and fall on uneven pavement in the parking area in front of Defendants’ 7-Eleven store.

On August 31, 2020, 7-Eleven filed a Cross-Complaint against URMI, Paul Paik, and Lae Oh Paik for indemnity, apportionment of fault, and declaratory relief. Paul Paik and Lae Oh Pail (collectively, the “Paiks”), are the owners of the shopping center where the subject 7-Eleven store is located.

On February 17, 2023, Plaintiff dismissed URMI and 7-Eleven from this action with prejudice.

7-Eleven now moves for leave to file the First Amended Cross-Complaint. Defendant seeks to revise its Declaratory Relief cause of action and to substitute other causes of action with causes of action for Contractual Indemnity and Breach of Lease Agreement against the Paiks.

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. APPLICATION

7-Eleven seeks leave to file the proposed first amended cross-complaint to reflect the changes in the case since its initial filing. Plaintiff has dismissed all named defendants from this action with prejudice. (See 2/17/23 Request for Dismissal.) Accordingly, 7-Eleven seeks to revise its Declaratory Relief cause of action against the Paiks and to substitiute Contractual Indemnity and Breach of Lease Agreement counsel causes of action based on the Paiks’ refusal to formally accept or reject 7-Eleven’s tender of defense. (See Declaration of George L. Mallory, Jr.)

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 amended cross-complaint.

IV. CONCLUSION

The motion for leave to file the First Amended Cross-Complaint is GRANTED. Defendant/Cross-Complainant 7-Eleven, Inc. is ordered to file the attached amended cross-complaint within 10 days of this order.

Moving party to give notice.

Dated: October 27, 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.