TENTATIVE RULING

Defendants Ani Papazyan and Last Stop 4 Pain’s Motion for Judgment on the Pleadings is DENIED.

Plaintiff Jeffrey Laham’s Motion for Leave to File a Second Amended Complaint is DENIED.

REASONING

Defendants Ani Papazyan and Last Stop 4 Pain’s Motion for Judgment on the Pleadings

Request for Judicial Notice

Defendants Ani Papazyan and Last Stop 4 Pain (“Defendants”) request judicial notice of the Resolution of the Board of Directors of California Massage Therapy Council, adopted on September 6, 2017. Defendants’ request is GRANTED pursuant to Evidence Code section 452, subdivision (d). Defendants also request judicial notice of the California Massage Therapy Council Certification History of Massage Professional Ani Papazyan. Defendants’ request is DENIED, as there is no legal basis to take judicial notice of this document.

Analysis

Defendants move for judgment on the pleadings as to Plaintiff Jeffrey Laham (“Plaintiff”)’s single cause of action for general negligence on the ground the claim is barred by the statute of limitations set forth in Code of Civil Procedure section 340.5.

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (Code Civ. Proc., § 438, subd. (f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Judgment on the pleadings is proper when the complaint does not state facts sufficient to constitute a cause of action against the defendant.” (Rolfe v. Cal. Transp. Comm’n (2002) 104 Cal.App.4th 239, 242; see also Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi, supra, 218 Cal.App.4th at p. 1013.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Code of Civil Procedure section 340.5 provides that “[i]n an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first” absent tolling. The statute further provides that “‘[h]ealth care provider’ means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.”

Defendants argue that Defendant Ani Papazyan qualifies as a health care provider because she is certified by the California Massage Therapy Council, such that this action is subject to a one-year statute of limitations. However, there are no allegations to this effect in the pleading, nor have Defendants provided any evidence which is subject to judicial notice to establish that Papazyan is so licensed. While this may be grounds to grant a dispositive motion where evidence is accepted, the Court cannot grant a motion for judgment on the pleadings where the facts are not in the pleading. Evidence that massage professionals generally are health care providers does not provide a basis for finding that this alleged massage professional was licensed and therefore qualifies as a health care provider. As stated above, the Court lacks a basis to take judicial notice of the California Massage Therapy Council Certification History of Massage Professional Ani Papazyan provided by Defendants. Accordingly, Defendants Ani Papazyan and Last Stop 4 Pain’s Motion for Judgment on the Pleadings is DENIED.

Plaintiff Jeffrey Laham’s Motion for Leave to File a Second Amended Complaint

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 moves the Court for leave to file a Second Amended Complaint to add two defendants to this action, Duncan P. Levin and Tucker Levin, PLLC, and to add allegations of general negligence by those proposed defendants, specifically that they are liable for professional negligence for failing to commence a legal action or proceeding by Plaintiff as to the incident at issue in this action. Plaintiff has provided a copy of the proposed pleading and described the proposed amendments. (Mot., pp. 6-7; Smith Decl. ¶ 11, Ex. A.) Plaintiff represents that the proposed amendments will allow Plaintiff the opportunity to allege a professional malpractice claim against his former counsel should Defendants’ motion for judgment on the pleadings be successful, wherein Defendants argue that Plaintiff’s claims are barred by the statute of limitations.

The Court finds that amendment is not proper here. Plaintiff’s proposed amendments anticipate an adverse ruling by the Court on this issue. The Court has denied the motion for judgment on the pleadings, and it will not issue an advisory opinion as to whether Plaintiff may be subject to an adverse ruling at a later juncture on this issue. Accordingly, Plaintiff Jeffrey Laham’s Motion for Leave to File a Second Amended Complaint is DENIED