Judge: Michael E. Whitaker, Case: 19STCV45568, Date: 2022-08-11 Tentative Ruling

Case Number: 19STCV45568    Hearing Date: August 11, 2022    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 Sacha Agopian, a minor, by and through his Guardian ad Litem, Christine Agopian moves the Court for an order granting leave to file a second amended complaint to assert a claim for negligence against ARDI VIII International, LLC dba Charley’s Grilled Subs (“ARDI”).  ARDI opposes the motion.  

ANALYSIS

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, Plaintiff filed his original complaint on December 17, 2019, asserting causes of action for premises liability and general negligence against defendant Sherman Oaks Fashion Associates, LP (“SOFA”), based on injuries Plaintiff alleges he sustained when he fell from climbing equipment in the children’s play area of a shopping mall owned and controlled by SOFA after being startled by a fire alarm.  (Complaint, pp. 4-5.)  Plaintiff filed a first amended complaint on March 30, 2020, purportedly asserting the same causes of action against SOFA but omitting the required attachments for each cause of action and the inclusion of DOE defendant.  (See First Amended Complaint.) 

1. Procedural History

    

   On May 18, 2021, SOFA filed a cross-complaint against ARDI for breach of contract, express contractual indemnity, equitable apportionment, equitable indemnity, third-party tort of another, and declaratory relief.  ARDI filed its answer to the cross-complaint on July 7, 2021, and filed a cross-complaint against SOFA for declaratory relief, equitable indemnity, contribution, and express indemnity on the same date.  SOFA answered ARDI’s cross-complaint on July 23, 2021.

    

   Plaintiff filed this motion on May 10, 2022, simultaneously with an amendment to the first amended complaint substituting ARDI for DOE 1, despite not having included DOE defendants in the first amended complaint.

    

2. Procedural Defects

    

               In support of the motion, Plaintiff advances the declaration of counsel for Plaintiff, Tony Forberg (“Forberg”).  Forberg states, “No has yet appeared in this action and therefore, a notice of this ex parte application was not provided to anyone.”  (Declaration of Tony Forberg, ¶ 1[1].) 

    

               Forberg’s declaration does not state (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, as required.  (See Cal. Rules of Court, rule 3.1324, subd. (b).)  Further, Plaintiff’s motion does not 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 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, as required.  (See Cal. Rules of Court, rule 3.1324, subd. (a).)  As such, the Court finds Plaintiff’s motion to be procedurally deficient. 

    

   CONCLUSION AND ORDER

    

   Accordingly, the Court denies Plaintiff’s motion for leave to file an amended complaint without prejudice. The Clerk of the Court shall provide notice of the Court’s ruling.