TENTATIVE RULING

Plaintiff Robin Sherry’s Motion for Leave to File a Third Amended Complaint to Add Dangerous Condition on Public Property Cause of Action is DENIED.

Plaintiff Robin Sherry to give notice. 

REASONING

The court may grant leave to amend the pleadings at any stage of the action. (Code Civ. Proc., § 473, subd. (a).) A party may discover the need to amend after all pleadings are completed (the case is “at issue”) and new information requires a change in the nature of the claims or defenses previously pleaded. (See Dye v. Caterpillar, Inc. (2011) 195 Cal.App.4th 1366, 1380.)

“The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff’s claim is clear, but under substantive law, no liability exists and no amendment would change the result.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428, internal quotation marks and citations omitted.) Courts apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, added costs of preparation, or an increased burden of discovery. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 [trial court’s denial of leave to amend was proper where those factors were present].) If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565 [describing same].)

A motion for leave to amend must: 

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(Cal. Rules of Court, rule 3.1324(a).) 

Further, a separate declaration must accompany the motion and must specify the following:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.

(Cal. Rules of Court, rule 3.1324(b).)

Plaintiff Robin Sherry (“Plaintiff”) moves the Court for leave to file a Third Amended Complaint to add a “Dangerous Condition on Public Property” cause of action against Defendant City of Santa Monica (“the City”), which would replace Plaintiff’s current fourth cause of action for negligent hiring and supervision. Plaintiff has provided a copy of the proposed pleading and described the proposed amendments. (Mot., Behnam Decl. ¶¶ 2-4, Ex. B.) The City opposes the amendment on the ground that Plaintiff unreasonably delayed in asserting this new claim, and Plaintiff’s proposed new claim does not sufficiently allege that a substantial risk existed at the Santa Monica Farmer’s Market to individuals exercising due care, and with respect to any failure to warn contention, the statutory basis for such a claim is unclear. In her reply, Plaintiff argues the amendment is merely one designed to cure a technical defect in a pleading, and the City has sufficient time to prepare its case for trial.

Plaintiff’s motion fails to set forth sufficient facts to warrant amendment at this juncture. Plaintiff provides a statement in her notice of motion that she “was not dilatory in seeking leave to amend in that recently obtained discovery warrants the filing of this motion at this time” (Mot., p. 2, ll. 6-8), but she provides no specific facts to support this statement to allow the Court to determine whether Plaintiff timely sought to amend her pleading. In the declaration supporting the motion, Plaintiff’s counsel states that “Plaintiff has the building blocks to assert a Cause of Action for ‘Dangerous Condition on Public Property,’” but there are no facts describing when the facts giving rise to the amended allegations were discovered. (See Mot., Behnam Decl. ¶ 5.)

Insofar as Plaintiff classifies this amendment as merely curing a technical defect, this is belied by the nature of the claims. The fourth cause of action for negligent hiring and supervision in the Second Amended Complaint states that the City failed to train its employee and Farmer’s Market Manager on pedestrian safety, failed to implement a speed limit for its contracted vendor vehicles, failed to supervise its employees and vendors when driving on the premises, and failed to make the premises safe from moving vehicles. (Second Am. Compl. ¶ 27.) In the proposed fourth cause of action for dangerous condition of public property, Plaintiff provides the same allegations but labels the claim as one for dangerous condition of public property. While both claims are variations of negligence, they require proof of different elements, i.e., the elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837), while the elements of a cause of action for dangerous condition of public property are “(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 758).

It follows that Plaintiff’s diligence in amending the claim is an important consideration given she asks to assert a new claim requiring proof of different elements, potentially requiring discovery of new evidence, and shifting an already filed dispositive motion and trial preparation to focus on new allegations. Plaintiff provides no evidence of any such diligence here. Thus, the Court is not inclined to allow Plaintiff to assert an entirely new claim after this action has been pending for more than three years when it appears Plaintiff has known of the facts underlying her proposed new claim since the outset of this action. Thus, Plaintiff Robin Sherry’s Motion for Leave to File a Third Amended Complaint to Add Dangerous Condition on Public Property Cause of Action is DENIED.