Judge: Mark C. Kim, Case: 18STCV07682, Date: 2023-01-03 Tentative Ruling



Case Number: 18STCV07682    Hearing Date: January 3, 2023    Dept: S27

1.     Background Facts

Plaintiff, Ursula Carmody filed this action against Defendant, City of Los Angeles for (1) negligence – direct liability, (2) negligence – city vicarious liability/employee, and (3) negligence – city/employee failed to inspect and warn of dangerous condition.  Plaintiff alleges she was a volunteer at Harbor Animal Care Shelter, which is owned by the City.  She alleges the City breached a duty to inspect and evaluate a dog under its control, and failed to warn Plaintiff or others that the animal was dangerous.  Plaintiff alleges Defendant instructed her to groom, bathe, and walk the dog, and the dog knocked her down, attacked her, mauled her, and bit her in her head, face, and armpit. 

 

On 8/24/22, the Court signed the parties’ stipulation to permit Plaintiff to file a First Amended Complaint adding a claim for gross negligence.  The Court does not have any record of Plaintiff ever actually filing the amended complaint.  On 9/16/21, the City filed its operative First Amended Answer, which indicates it is to Plaintiff’s “complaint,” not FAC.  It therefore appears Plaintiff’s original complaint remains operative.

 

On 1/18/22, the Court granted the City’s unopposed motion for leave to file a cross-complaint.  On 1/26/22, the City filed a cross-complaint against Plaintiff.  The cross-complaint includes causes of action for indemnification, apportionment of fault, declaratory relief, and breach of contract.  The prayer seeks indemnity, judgment in a proportionate share, a judicial determination for indemnification, and compensatory damages. 

 

2.     Motion for Leave to File First Amended Complaint

  1. Parties’ Positions

Plaintiff seeks leave to add allegations of gross negligence to her negligence cause of action and a separate strict liability cause of action to her complaint.  She contends she learned of facts supporting these claims during discovery, and there will be no prejudice to Defendant if the motion is granted.

 

The City opposes the motion.  It argues Plaintiff has not presented any explanation for her delay in seeking relief, and the delay has caused it prejudice.  It argues the motion does not comply with the Rules of Court.  It argues the proposed new claims fail to state a cause of action, such that leave to amend is futile.  Finally, it contends that, in the event the Court grants leave to amend, Plaintiff should be ordered to pay fees to the City.

 

Any reply to the opposition was due on or before 12/30/22.  The Court has not received timely reply documents, and will not consider late-filed reply documents. 

 

  1. Rules of Court

CRC 3.1324 governs motions for leave to amend.  It provides, in relevant part:

(a) Contents of motion

A motion to amend a pleading before trial 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.

 

(b) Supporting declaration

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.

 

The City correctly notes that Plaintiff failed entirely to comply with 3.1324(a).  There is no statement, by page and line number, of the allegations being deleted or added.  Additionally, the Declaration of Counsel, Peter Goldstein, fails to comply with 3.1324(b).  Most importantly, it does not address when the facts giving rise to the amended allegations were discovered or why the request for amendment was not made earlier.  The City correctly notes that Plaintiff contends the facts supporting her claims were discovered during the Deposition of Quintero, a copy of which is attached as Exhibit 3, but the deposition was taken back in 2019.  The City also correctly notes that the parties stipulated to permit Plaintiff to file an amended complaint including claims of gross negligence back in 2021, but Plaintiff never did so. 

 

  1. Delay and Prejudice

The City adequately shows that Plaintiff’s delay has caused it prejudice.  It has a summary judgment motion scheduled on 2/02/23, and the motion will be rendered moot if the complaint at which it is directed is no longer operative.  Additionally, trial is scheduled for 3/06/23, and it would need time to attack the amended pleading and/or do discovery in connection with the amended pleading if the motion were granted.  This is all particularly egregious because the case has been pending since 12/07/18, more than four years, and Plaintiff could have amended in 2021 per stipulation, but chose not to do so.  Plaintiff has created the situation and it would be unfair to require Defendant to change its litigation strategy at this late stage of the game when the delay could have been easily avoided. 

 

The motion is denied.  The Court declines to rule on the issue of whether or not the proposed amended complaint states a claim, as doing so is not necessary to a resolution of the merits of the motion.  The Court does, however, note that it has concerns about the merits of the proposed claims. 

 

Plaintiff is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear remotely.