Judge: Lisa R. Jaskol, Case: 22STCV30713, Date: 2023-11-16 Tentative Ruling

Case Number: 22STCV30713    Hearing Date: November 16, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows.  

BACKGROUND 

On September 20, 2022, Plaintiff Jack Feresten (“Plaintiff”), by and through his guardian ad litem Michael Feresten, filed this action against Defendants Palisades Village Center Associates, LLC (“Palisades”), Academy of Technology Art and Music LLC (“Academy”), Anthony Wamble (“Wamble”), Brett Sutherlin, individually and as trustee of the Sutherlin Family Trust (“Brett Sutherlin”), Karen Sutherlin, individually and as trustee of the Sutherlin Family Trust (“Karen Sutherlin”), and Does 1-50 for general negligence and premises liability. 

On January 20, 2023, Palisades, Academy, and Wamble filed an answer and a cross-complaint against Cross-Defendants Brett Sutherlin, Karen Sutherlin, and Roes 1-20 for indemnity and contribution. On July 18, 2023, Karen Sutherlin and Brett Sutherlin filed an answer. On October 4, 2023, Palisades, Academy, and Wamble amended the cross-complaint to include Cross-Defendant Erika Feresten (“Erika Feresten”) as Roe 1. 

On April 11, 2023, Brett Sutherlin and Karen Sutherlin filed an answer to Plantiff’s complaint and a cross-complaint against Cross-Defendants Michael Feresten (“Michael Feresten”) and Moes 1-10 for contribution, indemnity, declaratory relief, and negligent supervision. On May 18, 2023, Michael Feresten filed an answer. On August 28, 2023, the Court dismissed the cross-complaint without prejudice at the request of Brett Sutherlin and Karen Sutherlin. 

On October 4, 2023, Palisades, Academy, and Wamble (“Moving Defendants”) filed a motion for leave to file amended answer to be heard on November 16, 2023. On November 1, 2023, Plaintiff filed an opposition. On November 8, 2023, Moving Defendants filed a reply. 

Trial is currently scheduled for March 19, 2024. 

PARTIES’ REQUESTS 

Moving Defendants request leave to file and serve the proposed first amended answer. 

Plaintiff requests that the Court deny the motion. 

LEGAL STANDARD 

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”  (Code Civ. Proc., § 473, subd. (a)(1).) 

“Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”  (Code Civ. Proc., § 576; see Cal. Rules of Court, rule 3.1324.) 

“ ‘While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. [Citations.] And it is a rare case in which “a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. [Citations.]’”  (Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031, quoting Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) 

“Courts usually display great liberality in allowing amendments to answers because ‘a defendant denied leave to amend is permanently deprived of a defense.’”  (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 6:643, p. 6-189 (Cal. Practice Guide), quoting Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) 

DISCUSSION 

A.   The complaint 

In his complaint, Plaintiff alleges the following: 

On September 20, 2020, Plaintiff fell on Defendants' property and was injured by dangerous conditions on the property.  Defendants negligently maintained, inspected, repaired, managed, supervised, controlled and/or operated the property and negligently hired, trained, supervised, controlled and/or monitored employees and agents responsible for maintenance, inspections, repair, supervision, control and operations. 

Defendants caused the hazardous, dangerous conditions and/or these conditions existed for a sufficient time prior to the incident for Defendants to have corrected, removed, and/or warned Plaintiff of the existence of conditions, which Defendants negligently failed to do. Defendants also failed to warn Plaintiff of the risks and dangers which Defendants created, knew about, or in the exercise of reasonable care should have known about, and which were unknown and not readily apparent to Plaintiff.  Defendants had actual and/or constructive notice of the dangerous conditions. 

B.   Moving Defendants’ answer 

In their answer, Moving Defendants denied the complaint’s allegations and asserted affirmative defenses. 

C.   Moving Defendants’ motion to amend the answer 

Moving Defendants seek leave to amend their answer to add express agreement/waiver as an affirmative defense.  Moving Defendants argue their counsel learned that Plaintiff’s mother signed a waiver provided by Wamble and the Academy regarding Plaintiff.  According to Moving Defendants, Plaintiff will not be prejudiced by amendment of the answer because Plaintiff has sufficient time to conduct discovery about the new affirmative defense. 

The proposed affirmative defense states: “Defendants are informed and believe and, based thereon, alleges that Plaintiff executed a waiver and release and/or otherwise agreed to release and waive its rights to some or all of the claims asserted in the Complaint.”  (Exh. A to Migoya Dec.) 

D.   Plaintiff’s opposition to the motion 

Plaintiff contends that Moving Defendants have known about the waiver issue since at least March 17, 2021, when the Academy’s insurance carrier sent a letter to Plaintiff regarding a parent liability agreement purportedly signed by Plaintiff’s mother in 2016.  According to Plaintiff, Moving Defendants waived their right to assert waiver as an affirmative defense by failing to include it in their answer and failing to explain why they did not previously assert it. 

In the alternative, Plaintiff asks the Court to allow only Academy and Wamble to assert waiver as an affirmative defense because Moving Defendants do not contend in their motion that the waiver applies to Palisades. 

E.   Analysis 

Even if, as Plaintiff argues, Moving Defendants unreasonably delayed moving to amend, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)  “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc.”  (Cal. Practice Guide, supra, ¶ 6:656, p. 6-193.)  Plaintiff has not asserted or shown that allowing the amendment will delay the trial or prejudice Moving Defendants in other ways. 

The Court will not decide, at this stage of the case, if the alleged waiver applies to Palisades.  The Court has not reviewed the alleged waiver and lacks information about its terms.  (See Cal. Practice Guide, supra, ¶ 6:644, pp. 6-189 to 6-190 [“Ordinarily, the judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. . . . After leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading”].) 

Having considered the parties’ arguments, the Court exercises its discretion to grant the motion. 

CONCLUSION 

The Court GRANTS the motion for leave to file an amended answer filed by Defendants Palisades Village Center Associates, LLC, Academy of Technology Art and Music LLC, and Anthony Wamble.  Defendants Palisades Village Center Associates, LLC, Academy of Technology Art and Music LLC, and Anthony Wamble Jose are ordered to file and serve the amended answer within 10 days of the hearing on the motion. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.