Judge Maurice A. Leiter, Case 20STCV34657 2023-01-10 Tentative Ruling

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court may allow, in furtherance of justice, and “upon any terms as may be just, an amendment to any pleading or proceeding in other particulars….” (CCP § 473(a)(1).) It is not an abuse of discretion of the court to grant the motion unless there is a “showing that actual unfairness or obvious prejudice has resulted from the allowance of such an amendment”. (Posz v. Burchell (1962) 209 Cal.App.2d 324, 334.) “Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading.” (Ibid.) Absent a showing of prejudice, delay alone is insufficient grounds for denial. (See Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564–65.)

Plaintiff moves for leave to a file a first amended complaint to add a defendant, and to add facts to Plaintiff’s negligence cause of action. Plaintiff alleges a Los Angeles Police Officer wrongfully shot him in the genitals with a rubber bullet at a protest on May 20, 2020. Plaintiff asserts that he has recently learned the identity of this officer as Officer Brandon Purece in discovery and seeks to add him to the complaint. Plaintiff also discovered information suggesting the Police Department failed to dispatch sufficient police personnel to the protest; Plaintiff seeks to add these facts to the existing negligence cause of action.

In opposition, Defendants assert Plaintiff has unreasonably delayed in bringing this motion, waiting until after Defendants filed their motion for summary judgment. Defendants represent that they “have not had the opportunity to conduct discovery or to investigate the new theory of liability or the new factual allegations or the basis for Officer Purece’s alleged liability.” (Opp. 1:14-15.) Defendants argue they will be prejudiced by amendment.

In reply, Plaintiff contends that counsel attempted to reach an agreement regarding a first amended complaint with Defendants’ counsel before Defendants filed their motion for summary judgment. Plaintiff also asserts that Defendants have known of Officer Brandon Purece’s involvement in the incident throughout litigation and cannot now claim to be surprised he will be added as a Defendant.

The Court finds amendment in the interests of justice. Trial remains several months away. Defendants will not be prejudiced by amendment; they have known of Officer Brandon Purece’s identity and Plaintiff’s intention to seek leave to file a first amended complaint since before the filing of their summary judgment motion. The Court and parties will address the possible impact of the amendment on the pending summary judgment motion.

“A party seeking discovery of a peace officer's personnel records must follow a two-step process. First, the party must file a written motion describing the type of records sought, supported by ‘[a]ffidavits showing good cause for the discovery. . ., setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.’ [Cal. Evid. Code § 1043(b)(3).] This initial burden is a ‘relatively relaxed standard [ ].’ Information is material if it ‘“will facilitate the ascertainment of the facts and a fair trial.”’ ‘[A] declaration by counsel on information and belief is sufficient to state facts to satisfy the “materiality” component of that section.’” (Haggerty v. Superior Court (2004) 117 Cal. App. 4th 1079, 1085–1086 [citations omitted].)

“Second, if ‘the trial court concludes the defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents “potentially relevant” to the defendant's motion. . . . The trial court “shall examine the information in chambers” [Cal. Evid. Code § 1045(b).], “out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present.”. . . Subject to statutory exceptions and limitations. . . the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.”’” (Haggerty, supra at 1086.)

Plaintiff seeks the personnel records of the officers[1] involved in the incident which caused Plaintiff injury during a protest. Plaintiff seeks the records of Officers Rivera, Clark and Purece, including previous complaints of similar conduct as that involved in this action. These records are plainly relevant and discoverable. Defendants’ attempts at arguing otherwise are not persuasive.

[1] Defendants argue that the motion must be denied because Plaintiff failed to identify the officers by name in the moving papers. The Court declines to deny the motion on this ground. The parties are aware of which officers were involved in the incident.