Judge: Lynne M. Hobbs, Case: 22STCV30191, Date: 2024-01-08 Tentative Ruling

Case Number: 22STCV30191    Hearing Date: January 8, 2024    Dept: 30

KELLY WADE vs ELENA HARTZ

TENTATIVE

Plaintiff’s motion for leave to file an amended complaint is GRANTED. Plaintiff is ordered to file the attached amended complaint within 20 days of this order. Moving party to give notice.

Legal Standard

California 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.”¿

“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.)¿ Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿ The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿¿(See¿California Casualty General Ins. Co. v. Superior Court¿(1985) 173 Cal.App.3d 274, 281¿(overruled on other grounds by¿Kransco¿v. American Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390).)¿

“ ‘[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.’ (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 759-761.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

Under¿California Rules of Court¿Rule 3.1324(a), 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.¿

Under¿California Rule of Court¿Rule 3.1324(b), 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.¿

Discussion

After taking defendant Hartz’s deposition and obtaining her testimony of the events, Plaintiff seeks a court order permitting her to file a first amended complaint to add defendants Yekaterina Zekina, Brennan O’Keefe, who were watching the dog when the incident occurred, and Crescent Heights, Inc. dba Ten Thousand, the owner of the apartment building where the injury occurred, and to allege a separate cause of action for premises liability against Ten Thousand. Plaintiff further seeks to include a strict liability attachment which was inadvertently omitted from the original complaint event though the complaint did assert defendant Hartz’s strict liability for the bite as the dog’s owner.

Plaintiff has complied with CRC Rule 3.1324 by including a copy of the proposed amended complaint and indicating what allegations are proposed to be added to the previous pleading. (Silber Decl., Exh. 2.) Plaintiff also explains that she discovered during discovery the facts that give rise to the amended pleadings. This is sufficient to explain why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why it was not made earlier.

As such, in view of the well-established liberality with which amendments are to be allowed, the motion is granted.