Judge: Michael E. Whitaker, Case: 20STCV47154, Date: 2022-07-28 Tentative Ruling

Case Number: 20STCV47154    Hearing Date: July 28, 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. 







July 28, 2021




Leave to File First Amended Complaint


Plaintiff Mary Elizabeth Dunn






Plaintiff Mary Elizabeth Dunn sued defendants City of Los Angeles and ABM Industry Groups, LLC (collectively, “Defendants”) based on injuries Plaintiff alleges she sustained in a trip and fall on property owned and controlled by Defendants.  Plaintiff moves the Court for an order granting leave to file a first amended complaint. 


Plaintiff asserts that the complaint filed by Plaintiff’s prior counsel on December 9, 2020, cites inapplicable case law as a basis for Defendants’ liability.  Plaintiff now seeks to amend the complaint to correct the error to avoid demurrer. Defendants have not filed an opposition to the motion.




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 2020) ¶ 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, as set forth in the declaration of counsel for Plaintiff, Vadim Feldshtein (“Counsel”), the parties have agreed to amending the complaint to avoid the filing of a demurrer that was contemplated.  (Declaration of Vadim Feldshtein, ¶ 3.)  Plaintiff represents that her present counsel, Bauman Law, took over representation of Plaintiff on August 23, 2021.  (Memorandum of Points and Authorities, p. 1.)  Counsel avers that once his office became aware of the errors in the complaint, he immediately took steps to correct those errors and confer with counsel for Defendants to avoid the proposed demurrer. (Ibid.)  Finally, Counsel avers that, after having received a copy of the proposed first amended complaint, Defendants have withdrawn their demurrer.  (Declaration of Vadim Feldshtein, ¶ 5.) 


Accordingly, the Court finds that Plaintiff has met her burden in establishing a factual and legal basis for leave to file an amended complaint, and grants Plaintiff’s motion for leave.  The Court further orders Plaintiff to file and serve the proposed amended complaint within 20 days of the hearing on the motion. 


Plaintiff is ordered to provide notice of the Court’s orders and file a proof of service of such.