Judge: Michael E. Whitaker, Case: 19STCV18047, Date: 2023-04-27 Tentative Ruling

Case Number: 19STCV18047    Hearing Date: April 27, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiff Fernando Romo (Decedent) sued Defendant Lynda Marie Johnson (Defendant) based on injuries Decedent alleged he sustained in a motor vehicle collision.  Plaintiffs Estate of Fernando Romo, Martha J. Sanchez (Martha), Christopher J. Romo Sanchez (Christopher), Fernando Romo, Jr. (Fernando) and Dania Y. Romo (Dania), a minor, by and through her Guardian Ad Litem, Martha J. Sanchez (collectively, Plaintiffs) move the Court for an order to have Plaintiffs Martha J. Sanchez (Martha), Decedent’s surviving wife, and Christopher J Romo Sanchez (Christopher), Fernando Romo, Jr. (Fernando), and Dania Y. Romo (Dania), Decedent’s surviving children, maintain this action as Decedent’s successors in interest. 

            Plaintiffs additionally move the Court for an order granting leave to file a first amended complaint (FAC). Plaintiff asserts that the FAC is necessary to allege additional causes of action for wrongful death and survival.

            Defendant has not filed an opposition.

            Preliminarily, the Court notes that Plaintiffs filed a single motion to request the Court (1) substitute successors in interest as Plaintiffs, and (2) grant Plaintiffs leave to file a FAC.  Instead, Plaintiffs should have filed separate motions as to each request of the Court for a total of two motions.  The Court will therefore order Plaintiffs to pay an additional $60 in filing fees.  (Gov. Code, § 70617, subd. (a).)

ANALYSIS

1.      Substitute Successors-In Interest

            A decedent’s successor in interest is the “beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.”  (Code Civ. Proc., § 377.11.)  “A pending action or proceeding does not abate by the death of a party if the cause of action survives.”  (Code Civ. Proc., § 377.21.)  “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.”  (Code Civ. Proc., § 377.31.)

Here, Martha, Christopher, and Fernando have advanced their own declaration in support of the motion, providing information required by Code of Civil Procedure section 377.32.  However, the declaration fails to mention Dania, and her status and information as it relates to Code of Civil Procedure sections 377.11 and 377.32.  Accordingly, the Court will grant in part Plaintiffs’ motion to have Martha, Christopher, and Fernando maintain this action as Decedent’s successors in interest and deny in part Plaintiffs’ motion to have Dania maintain this action as Decedent’s successor in interest. 

2.      Leave to File Amended Complaint

Amendments to Pleadings:  General Provisions     

Under Code of Civil Procedure section 473, subdivision (a)(1), “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.”

            To wit, without notice to the other party the Court has wide discretion to allow either party (i) to add or strike the name of a party or (ii) to correct a mistake in the name of a party or a mistake in any other respect “in furtherance of justice” and “on any terms as may be proper.”  (See Code Civ. Proc., § 473, subd. (a)(1); see also Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.)  Alternatively, after notice to the other party, the Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.”  (See Code Civ. Proc., § 473, subd. (a)(1).  Similarly, Code of Civil Procedure section 576 states “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.” 

            Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted.  (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 [this has been an established policy in California since 1901] (citing Frost v. Whitter (1901) 132 Cal. 421, 424; Thomas v. Bruza (1957) 151 Cal.App.2d 150, 155).)  The Court of Appeal in Morgan v. Superior Court held “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.”  (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.)  Moreover, “it is an abuse of discretion for the court 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 [opposing party did not establish harm by the delay in moving to amend the complaint].) 

            “The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 6:636 (hereafter Weil & Brown).)  Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.)  However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).)  “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.  . . .  But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.”  (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

            “Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’”  (Weil & Brown, supra, at ¶ 6:663, citation omitted.)  For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

California Rules of Court, rule 3.1324:  Procedural Requirements

            Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, 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.”

            In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

“(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.”

            Here, Plaintiffs have failed to advance the following in support of the motion: (1) a copy of the proposed amendment or amended pleadings; (2) statement of allegations that are proposed to be added to, or deleted from, the previous pleading, if any, and where, by page, paragraph, and line number, the additional or deleted allegations are located; (3) and a separate declaration specifying the effect of the amendment, the need for the amendment, when the facts giving rise to the amendment were discovered, and the reasons why the request for amendment was not made earlier.  Accordingly, the Court finds Plaintiffs’ motion for leave to file a FAC to be procedurally defective.

CONCLUSION AND ORDER

Therefore, Court grants in part Plaintiffs’ motion to have Martha, Christopher and Fernando maintain this action as Decedent’s successors in interest.  Further, the Court denies in part Plaintiffs’ motion to have Dania maintain this action as Decedent’s successor in interest.  The Court shall deem Plaintiffs Martha, Christopher and Fernando the successors in interest for Decedent upon the adoption of the tentative ruling as the order of the Court.

            Further the Court denies Plaintiffs’ motion for leave to file a FAC as procedurally defective.

            Finally, the Court orders Plaintiffs to pay an additional $60.00 in filing fees to the Clerk of the Court on or before May 18, 2023.

            Plaintiffs shall provide notice of the Court’s orders and file a proof of service of such.