Judge Lynette Gridiron Winston, Case Number: 23PSCV00721, Date: 2025-05-13 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV00721, Date: 2025-05-13 Tentative Ruling

The Court GRANTS Plaintiff’s motion for leave to amend the complaint on the condition that Plaintiff serially numbers the proposed First Amended Complaint and removes the allegations against Defendant Ira Smedra before filing and serving it. Plaintiff must then file and serve said First Amended Complaint within five days of the Court’s order. The Court also directs Plaintiff to separately file and serve a properly completed application for guardian ad litem for Keon within five days of the Court’s order.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is an elder abuse case. On March 10, 2023, plaintiff Delmar Gawaran (Plaintiff) filed this action against defendants Win Win Enterprises, LLC, KF Ontario Healthcare, LLC dba Ontario Healthcare Center, KF Facilities Operations, LLC, Kirkside Facilities Operations, LLC, KSNF, LLC, Parkstone Holdings, LLC, AG West Covina, LLC dba West Covina Healthcare Center, AG Facilities Operations, LLC, BH Alliance (collectively, Defendants), Ira Smedra, and Does 1 through 50, alleging causes of action for elder abuse and neglect, violation of Health and Safety Code § 1430(b), negligence, and negligent hiring, supervision, and retention. On May 17, 2024, Plaintiff dismissed Defendant Ira Smedra from this action with prejudice.

On April 22, 2025, Plaintiff moved for leave to amend the complaint. On May 5, 2025, Defendants opposed the motion. On May 7, 2025, Plaintiff replied.

Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “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).) This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)

Under Rule 3.1324, subdivision (a) of the California Rules of Court, a motion to amend a pleading shall (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, subd. (a).)

Under Rule 3.1324, subdivision (b) of the California Rules of Court, a separate declaration must accompany the motion and must specify (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, subd. (b).)

Defendants contend and Plaintiff concedes that the motion was untimely. (Opp., p. 5; Reply, p. 2.) But, the Court does not find the untimeliness of the motion dispositive here. Defendants did not request a continuance or otherwise indicate how they were prejudiced by Plaintiff filing and serving the motion late. (See generally, Opp.; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [claim of inadequate notice was waived where the party opposed the motion eight days before the hearing, appeared and argued at the hearing, and did not request a continuance or argue prejudice because of the inadequate notice]; see also S. California Gas Co. v. Flannery (2014) 232 Cal.App.4th 477, 491-492 [any due process violation was not prejudicial to the party where the party opposed the motion and failed to present evidence of what additional arguments would have persuaded the court if the party could have made those additional arguments].) The Court will therefore still consider the motion, but nevertheless admonishes Plaintiff to comply with the requirements of the Code of Civil Procedure going forward.

Plaintiff seeks leave to amend the complaint to convert it and all causes of action to a survivor action and then add a new cause of action for wrongful death. Plaintiff indicates that Plaintiff died on April 18, 2024, and that he is survived by his children, Maegan Apostol (Maegan) and Keon Garawan (Keon), the latter of whom is a minor and whose mother is his guardian ad litem. Plaintiff contends these amendments will not prejudice any of the opposing parties. Plaintiff contends Maegan Apostol is the natural born child of Plaintiff and successor-in-interest of Plaintiff’s estate and on that basis seeks to convert the causes of action asserted in the complaint to survival causes of action in the First Amended Complaint. With respect to the wrongful death cause of action, Plaintiff contends Maegan and Keon are his only heirs and therefore entitled to jointly bring a wrongful death causes of action.

In opposition, Defendants contend that Plaintiff’s motion was untimely filed and served, prejudicing Defendants, that Plaintiff’s motion fails to comply with the mandatory requirements of Rule 3.1324, subdivision (b), of the California Rules of Court, Plaintiff has unjustifiably delayed in filing this motion, Plaintiff’s approximate eight-month delay substantially prejudices Defendants, and Plaintiffs’ proposed amendment fails to state a cause of action. Defendants contend Plaintiff untimely filed the motion on April 22, 2025, only 15 court days before the hearing on May 13, 2025. Defendants contend Plaintiff’s counsel’s declaration fails to state the effect of the proposed amendment, why the proposed amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons why the request was not made earlier.

The Court finds Plaintiff has sufficiently demonstrated that Maegan is Plaintiff’s successor-in-interest. First, Plaintiff submitted a declaration from Maegan that satisfies the requirements of Code of Civil Procedure section 377.32. (Code Civ. Proc., § 377.32; Cassidy Decl., Ex. B [Maegan Apostol Decl.]; Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1521–1524 [decedent’s adult child had standing to bring action].)

Second, the Court also finds Plaintiff has sufficiently complied with the requirements of Rule 3.1324 of the California Rules of Court. Plaintiff provided a copy of the proposed amended complaint with the noted proposed changes. (Cassidy Decl., Ex. E; Cal. Rules of Court, rule 3.1324, subd. (a)(1).) Plaintiff’s counsel’s declaration indicates having learned of Plaintiff’s death in August 2024, having Maegan substitute in as successor-in-interest for Plaintiff to pursue his current claims in a survivor action, then adding Maegan and Keon as plaintiffs for the proposed wrongful death claim. (See Cassidy Decl., ¶¶ 3-6.) While Plaintiff’s counsel’s declaration does not explain why leave to amend was not sought sooner, policy favors liberally permitting leave to amend to resolve all disputes in the same lawsuit. (See Cassidy Decl., ¶¶ 3-6; Kittredge Sports Co. v. Superior Court, supra, 213 Cal.App.3d at p. 1047.)

Third, the Court does not find Defendants sufficiently demonstrated prejudice if the Court granted leave to amend. “Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) The action has only been pending for two years and no trial date is currently set. The Court finds the greater prejudice would be to deny the leave to amend, as Plaintiff’s claims cannot continue without someone representing his estate. (See Grappo v. McMills (2017) 11 Cal.App.5th 996, 1007.)

Fourth, while the proposed wrongful death claim will likely expand the scope of this litigation, it is sufficiently related to the same underlying set of facts as to not unduly expand the scope of the litigation. (See Cassidy Decl., Ex. E.)

Fifth, the Court prefers to leave the viability of the proposed wrongful death claim to be resolved by demurrer rather than on a motion for leave to amend. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 [“we believe that the better course of action would have been to allow [plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings”].)

But, the Court notes a couple problems with the proposed amended complaint. First, the proposed amended complaint is not serially numbered in its title per Rule 3.1324, subdivision (a)(1), of the California Rules of Court. (Cal. Rules of Court, rule 3.1324, subd. (a)(1); Cassidy Decl., Ex. E.)[1] While the footer is titled First Amended Complaint, the actual document title needs to state “First Amended Complaint”. Second, Defendants correctly contend that Plaintiff’s proposed amended complaint improperly includes Defendant Ira Smedra, who was dismissed from this action with prejudice on May 17, 2024. (Cassidy Decl., Ex. E; Request for Dismissal (5/17/24).) Nevertheless, these issues can be resolved by Plaintiff making these changes and then filing and serving the proposed amended complaint with these changes implemented.

Based on the foregoing, the Court GRANTS the motion on the condition that Plaintiff serially numbers the proposed First Amended Complaint and removes the allegations against Defendant Ira Smedra before filing and serving it. The Court also orders Plaintiff to separately file and serve a properly completed application for guardian ad litem for Keon for the Court’s approval.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] The Court also notes that Plaintiff’s counsel did not sign the application for guardian ad litem for Keon attached to the motion, nor was paragraph 6 completed. (Cassidy Decl., Ex. C, ¶¶ 6-7, p. 17 of pdf.) The application should also be filed and served separately.