Judge: Lisa R. Jaskol, Case: 23STCV08632, Date: 2024-09-16 Tentative Ruling
Case Number: 23STCV08632 Hearing Date: September 16, 2024 Dept: 28
Having considered the moving papers on the motion for leave to file a second amended cross-complaint, the Court rules as follows.
BACKGROUND
A. Case number 23STCV08632
On April 18, 2023, Plaintiffs Hector Velazquez, an individual, heir and successor-in-interest to Victor Manuel Velazquez, Jesus Gutierrez, an individual, heir and successor-in-interest to Victor Manuel Velazquez, and Martha Velazquez, an individual, heir and successor-in-interest to Victor Manuel Velazquez (“Velasquez Plaintiffs”), filed an action against Defendants Ricardo Ivan Mendez (“Mendez”), Kia Motors Downtown LA, Kia Motors Fleet, and Does 1-100 for negligence per se (Vehicle Code section 21453, subdivision (a)), vicarious liability (Government Code section 815.2, subdivision (a)), Vehicle Code section 17001, and wrongful death. (Case number 23STCV08632.)
On May 25, 2023, Defendant First Motor Group of Los Angeles LLC dba Kia Downtown Los Angeles (erroneously sued as Kia Motors Down Town LA) (“Kia”) filed an answer and a cross-complaint against Cross-Defendants Roes 1-100 for complete indemnity, partial indemnity, equitable contribution, and declaratory relief.
On May 30, 2023, Mendez filed an answer.
On November 7, 2023, the Velasquez Plaintiffs amended the complaint to include Defendant Evolution Automotive Group, LLC (“Evolution”), as Doe 1.
On February 7, 2024, Kia filed a first amended cross-complaint against Cross-Defendants William Bowers (“Bowers”), Evolution, Mendez, Maria O Rivera De Perry (“Perry”), and Roes 1-100 for complete indemnity, partial indemnity, equitable contribution, and declaratory relief.
On March 12, 2024, Mendez and Evolution filed an answer to Kia’s first amended cross-complaint.
B. Case number 23STCV15805
On July 7, 2023, Perry filed an action against Defendants Mendez, Kia America Inc., Kia Motors Inc., Kia Motors Downtown LA, and Does 1-50 for negligence and negligent infliction of emotional distress. (Case number 23STCV15805.)
On August 8, 2023, Kia filed an answer to Perry’s complaint.
On March 28, 2024, Mendez filed an answer to Perry’s complaint.
On May 9, 2024, Evolution filed an answer to Perry’s complaint.
C. The Court relates and consolidates the cases
On February 5, 2024, the Court found that case numbers 23STCV08632 and 23STCV15805 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 23STCV08632 became the lead case. The cases were assigned to Department 28 at the Spring Street Courthouse for all purposes.
On July 26, 2024, the Court consolidated case numbers 23STCV08632 and 23STCV15805 in Department 28 based on the parties’ stipulation. Case number 23STCV08632 remained the lead case.
D. Perry demurs to Kia’s first amended cross-complaint
On August 2, 2024, Perry filed a demurrer to Kia’s first amended cross-complaint. The demurrer was set for hearing on August 29, 2024. On August 16, 2024, Kia filed an opposition. On August 21, 2024, Perry filed a reply. The Court continued the hearing on the demurrer to September 16, 2024.
E. Kia moves for leave to file a second amended cross-complaint
On August 7, 2024, Kia filed a motion for leave to file a second amended cross-complaint. The motion was set for hearing on September 5, 2024. The Court continued the hearing to September 16, 2024. No opposition has been filed.
Trial is currently scheduled for August 4, 2025.
PARTIES’ REQUESTS
A. Motion for leave to file second amended cross-complaint
Kia asks the Court for leave to file a second amended cross-complaint.
B. Demurrer
Perry asks the Court to sustain the demurrer to Kia’s first amended cross-complaint.
Kia asks the Court to overrule the demurrer.
I. MOTION FOR LEAVE TO FILE SECOND AMENDED CROSS-COMPLAINT
A. 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.)
“[I]t 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 (Kittredge).) “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.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 6:656, p. 6-193 (Cal. Practice Guide).)
“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.” (Cal. Practice Guide, supra, ¶ 6:644, pp. 6-189 to 6-190.)
B. Discussion
1. The Velasquez Plaintiffs’ complaint
The Velasquez Plaintiffs’ complaint alleges in part:
On July 12, 2021, the Velasquez Plaintiffs’ decedent, Victor Manuel Velazquez, was fatally injured in a vehicle collision on the Northbound 1-110 freeway in Los Angeles. Kia’s employee Mendez and/or Kia and the Doe defendants caused the collision.
2. Perry’s complaint
Perry’s complaint alleges in part:
On or around July 12, 2021, Mendez’s negligent driving caused a collision between Mendez’s vehicle, Perry’s vehicle, and Victor Manuel, Perry’s life partner. Perry’s vehicle had stopped on the freeway due to a previous collision and Victor Manuel had exited the vehicle to check on the occupants of the other vehicle. While Victor Manuel was outside Perry’s vehicle, Mendez’s vehicle struck Victor Manuel and Perry’s vehicle. As a result of Mendez’s negligence, Perry was injured and Victor Manuel suffered fatal injuries. Kia employed Mendez.
3. Kia’s first amended cross-complaint
Kia’s first amended cross-complaint alleges in part:
If Kia is liable to the Velasquez Plaintiffs “or any other party including Cross-Defendants [Bowers, Evolution, Mendez, Perry, and Roes 1-100] as a result of the injuries or damages, if any, suffered by [the Velasquez Plaintiffs], these damages were proximately caused by the acts, omissions, negligence, breach of contract, or other fault of Cross-Defendants and each of them.”
4. Kia’s motion for leave to file a second amended cross-complaint
Kia asks the Court for leave to amend its cross-complaint to include allegations designed to respond to Perry’s assertion that the first amended cross-complaint does not allege facts which state a claim against Perry. The proposed second amended cross-complaint would allege (among other things) that Perry, Bowers, Evolution, and Mendez “were owners and/or operators of motor vehicles involved in the automobile collisions which are the subject of the litigation, and each Cross-Defendant operated their vehicles in such a careless and reckless manner that it resulted in the death and injuries to Plaintiffs and others.”
The Court finds that the proposed amendments would not prejudice the Cross-Defendants. Therefore, the Court grants Kia’s motion for leave to file a second amended cross-complaint.
II. DEMURRER
“If by stipulation or as a matter of statutory right plaintiff amends the complaint before the demurrer hearing, the hearing goes off calendar.” (Cal. Practice Guide, supra, ¶ 7:122.16, p. 7(l)-56, citing People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506.)
The Court takes Perry’s demurrer off calendar.
CONCLUSION
The Court GRANTS Defendant and Cross-Complainant First Motor Group of Los Angeles LLC dba Kia Downtown Los Angeles’s motion for leave to file a second amended cross-complaint. Defendant and Cross-Complainant First Motor Group of Los Angeles LLC dba Kia Downtown Los Angeles is to file and serve the second amended cross-complaint within 10 days of the hearing on this motion. (The Court does not deem filed the copy attached to the motion.)
The Court takes Cross-Defendant Maria O Rivera De Perry's demurrer off calendar.
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.