Judge: Michael E. Whitaker, Case: 21STCV03417, Date: 2023-05-04 Tentative Ruling

Case Number: 21STCV03417    Hearing Date: May 4, 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 Zain Odetallah (Plaintiff) moves the Court for an order granting leave to file a first amended complaint (FAC).  Plaintiff asserts the FAC is necessary to correct clerical errors in Plaintiff’s original complaint, as well as to properly reflect the identities of Defendants.  Plaintiff further argues the FAC is necessary to amend the second cause of action for premises liability to allege that the perpetrator of the subject incident was not a single “security guard for-hire” but rather two separate individuals. 

Defendant Justin Jagoda (Defendant) opposes the motion.  Plaintiff replies.

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, as set forth in the declaration of counsel for Plaintiff, Adam H. Donabedian (Counsel), on January 28, 2021, Plaintiff’s complaint was filed and was never served on Defendants by Plaintiff’s former counsel.  (Declaration of Adam H. Donabedian, ¶ 2.)  On August 4, 2021, Counsel’s office was substituted in as counsel of record for Plaintiff.  (Declaration of Adam H. Donabedian, ¶ 3.)  On September 8, 2021, Counsel filed an Amendment to Complaint naming as Doe 1 “Jagoda, Steven D Co Tr And Justin K Jagoda Trust.”  (Declaration of Adam H. Donabedian, ¶ 4; see Amendment to Complaint Filed September 8, 2021.) 

Between September 28, 2021 through October 25, 2021, Counsel attempted to serve Defendant Justin Jagoda.  (Declaration of Adam H. Donabedian, ¶¶ 5-6.)  On May 19, 2022, Counsel mailed a notice and acknowledgement of receipt to Defendant Justin Jagoda  residence along with the pleadings.  (Declaration of Adam H. Donabedian, ¶ 7, Exhibit D.)  On July 6, 2022, Defendant Justin Jagoda filed his answer to the complaint.

On July 5, 2022, John Flock (Flock), counsel for Defendant Justin Jagoda, informally produced video footage of the incident.  (Declaration of Adam H. Donabedian, ¶ 11.)  Counsel avers that based on the video footage of the incident, as well as further discovery responses, it is now apparent that a “security guard for-hire” may not have been the attacker as is alleged in the complaint, but rather Plaintiff had two separate attackers, one of them who was running an event for profit on the premises where the incident occurred.  (Declaration of Adam H. Donabedian, ¶¶ 30, 31.)

Counsel further contends that the FAC is necessary to correct clerical errors in the original complaint, including but not limited to the following: correct number pagination, including the short title and case number for the matter on each page, indication of the total causes of action being alleged against Defendants, amending the caption and tops of pages to reflect the Doe Amendment filed on September 8, 2021.  (Declaration of Adam H. Donabedian, ¶¶ 28-30.)

On September 20, 2022, Counsel reserved the earliest available hearing date for a Motion for Leave to Amend, which was May 4, 2023.  (Declaration of Adam H. Donabedian, ¶ 18.)  Plaintiff filed the instant Motion for Leave to Amend on January 5, 2023.  Counsel provides the following explanation for why the instant motion was not filed at an earlier date:

(1) Plaintiff’s original complaint was filed by his prior attorney, Ms. Leftkowitz, who represented Plaintiff for approximately 7-months and never completed service of process on Defendants. Moreover, because of Ms. Leftkowitz’s lack of urgency, discovery was severely delayed during this time period; (2) Once my firm was substituted into the case, Defendant was extremely evasive and dodged numerous service attempts thereby taking even more time to get litigation going; and (3) Once the parties began engaging in discovery and written responses were exchanged, it became apparent that the facts as previously alleged by Ms. Leftkowitz were not accurate and needed to be modified.

(Declaration of Adam H. Donabedian, ¶ 34.)

In opposition, Defendant contends that the proposed FAC is a sham pleading because the proposed amended allegations in the premises liability cause of action are in contradiction to the allegations in the complaint.  Defendant highlights that the original allegations state that Plaintiff was attacked once by a security guard, while the proposed allegations now allege that Plaintiff was attacked twice, not by a security guard, but by two separate individuals. 

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.”  (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.)  “‘Generally, after an amended pleading has been filed, courts will disregard the original pleading. However, an exception to this rule is found ... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’ [Citation.]”  (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343; quoting Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.)¿¿ 

In reply, Plaintiff argues that his proposed allegations will not materially change the core allegations plead against Defendants: that Plaintiff was attacked on Defendants’ property.  The proposed allegations only alter the identities of the alleged attackers and the timing of the attacks.  Thus, Plaintiff concludes that the FAC would not constitute a sham pleading.  The Court further notes that Plaintiff has explained the inconsistencies between the original complaint and proposed FAC, indicating the changes have been made due to the discovery of further information about the incident in question, in part due to the receipt of video footage of the incident.  Finally, the Court does not generally consider the validity of the proposed amended pleading when deciding whether to grant leave to amend. (See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”].)  For the foregoing reasons the Court disregards Defendant’s “sham pleading” argument at this time.

Next, Defendant argues in opposition that Plaintiff has been dilatory in filing a motion for leave to amend the complaint, and thus Plaintiff’s motion should be denied.  Defendant attests that Defense counsel sent an initial letter to Plaintiff’s counsel on June 28, 2022, explaining that no security guard was hired on the night of the incident in question.  Defendant further contends that Plaintiff has not sufficiently explained why he waited seven months after the initial discovery that there was not a security guard present on the night in question to request an amendment altering the allegations in the complaint regarding the purported involvement of a “security-guard for hire”.

In reply, Plaintiff contends he has sufficiently explained his reasoning for the delay in filing the instant motion for leave to amend, and further highlights that Defendant has failed to deny the new facts alleged in his FAC. 

Finally, Defendant argues in opposition that he will be severely prejudiced if Plaintiff’s motion for leave to amend is granted in light of the current trial date set to begin on June 20, 2023.  Defendant contends he will not have sufficient time to conduct discovery regarding this alternate theory of liability.

The Court agrees with Defendant that Plaintiff has not sufficiently explained his delay in filing a motion for leave to amend after discovering that a security guard was not involved in the purported altercation, the main basis for the instant motion, in July of 2022.  Plaintiff’s counsel indicates in his declaration that he waited for receipt of Defendant Justin Jagoda written discovery responses before seeking to file the instant motion.  However, Plaintiff’s counsel fails to explain why he felt it necessary to wait for further information, or why he felt the surveillance video as described did not suffice as a basis to amend the complaint.  (See Declaration of Adam H. Donabedian, ¶ 25.)   Moreover, the Court notes that Plaintiff did not seek to have the Court advance the hearing date on the instant motion light of the June 20, 2023 trial.

Normally, merely being dilatory in seeking the amendment is insufficient to deny leave to amend; however, the Court finds Defendant has demonstrated permitting the amendment will prejudice Defendants as the proximity of trial in this matter will likely prevent Defendants from completing necessary discovery before the applicable cutoff dates.

CONCLUSION AND ORDER

Accordingly, the Court finds that Plaintiff has failed to meet his burden in establishing a factual and legal basis for leave to file a FAC, and denies Plaintiff’s motion for leave.

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