Judge: Michael E. Whitaker, Case: 21STCV09224, Date: 2022-12-20 Tentative Ruling

Case Number: 21STCV09224    Hearing Date: December 20, 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. 

NOTE:  TWO TENTATIVE RULINGS BELOW

TENTATIVE RULING - NO. 1

MOTION

Plaintiffs Jorge Medrano and Eduardo Ramirez (collectively, Plaintiffs) sued Defendants Shippers Transport Express, Inc. and Tony Doninelli (collectively, Defendants) based on a motor vehicle collision.  Defendants seeks leave to file an amended answer.  Defendants claim the proposed amendment is necessary to include the following recently discovered affirmative defenses: (1) failure to have insurance pursuant to Civil Code section 3333.4 and (2) failure to wear a seatbelt.  Plaintiff Jorge Medrano (Medrano) opposes the motion.  Defendants reply.

DISCUSSION

Amendments to Pleadings: General Provisions

Under Code of Civil Procedure section 473, subdivision (a)(1), “[t]he 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 (1941) 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 Defendants, Lilit Echeyan (Echeyan), new facts came to light over the course of discovery establishing available affirmative defenses Defendants did not assert in their initial Answer.  (Declaration of Lilit Echeyan, ¶ 3.)  Defendants’ discovered since their initial filing of their Answer that Plaintiff Eduardo Ramirez failed to have insurance while driving and Medrano apparently failed to wear a seatbelt.  (Declaration of Lilit Echeyan, ¶ 3.) 

            In opposition, Medrano first argues that Defendants have failed to specify what “further research” led to a determination that information existed supporting the additional affirmative offenses alleged, and thus Defendants’ motion to amend their Answer is unjustified.  The Court agrees. The Declaration accompanying Defendants’ motion does not specify what new information was discovered through their “further research” on October 6, 2022, that gave rise to the new affirmative defenses, nor why these affirmative defenses could not have been plead earlier, which is in violation of Rule 3.1324(b).

CONCLUSION AND ORDER

Therefore, the Court denies without prejudice Defendants’ motion for leave to file an amended answer as procedurally defective.  Defendants shall provide notice of the Court’s ruling and file a proof of service of such.

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 - NO. 2

MOTION

Plaintiffs Jorge Medrano and Eduardo Ramirez (collectively, Plaintiffs) sued Defendants Shippers Transport Express, Inc. and Tony Doninelli (collectively, Defendants) based on a motor vehicle collision.  Defendants seeks leave to file a cross-complaint against Plaintiff Eduardo Ramirez (Ramirez).  Ramirez opposes the motion.  Defendants reply to the opposition. 

Preliminarily, the Court notes Ramirez failed to properly serve the opposition on Defendants.  The Court further notes that despite the procedural deficiency, Defendants nevertheless filed a timely reply to the opposition fully addressing its merits. The Court therefore finds Defendants will not be prejudiced by the Court’s consideration of Ramirez’s untimely opposition, and, accordingly, exercises its discretion to do so.

DISCUSSION

Per Code of Civil Procedure section 428.10, a party against whom a cause of action is asserted may file a cross-complaint to assert “[a]ny cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.”  (Code Civ. Proc., § 428.10, subd. (b).)  A party must obtain leave of court to file a cross-complaint if the party does not file the cross-complaint at the same time as the answer.  The court may grant leave to file a cross-complaint in the interests of justice at any time during the course of the action.  (Code Civ. Proc., § 428.10, subd. (c).) 

Here, Defendants seeks to file a cross-complaint against Ramirez for equitable indemnity, contribution, and declaratory relief.  Because Plaintiffs sued Defendants based on the same motor vehicle collision, Defendants’ proposed cross-complaint against Plaintiffs is compulsory. (Code Civ. Proc., § 426.30.) Because the cross-complaint is compulsory, the Court “shall grant, upon such terms as may be just to the parties, leave to . . . file the cross-complaint . . . if the party who failed to plead the cause acted in good faith.” (Code Civ. Proc., § 426.50.)  Section 426.50 “shall be liberally construed to avoid forfeiture of causes of action.”  (Ibid.) 

In opposition, Ramirez argues Defendants’ motion is untimely, unnecessary, and unduly burdens Ramirez.  First Defendant argues that the motion for leave to file a cross-complaint is untimely since it was filed 19 months after Plaintiffs’ filed their Complaint, and 18 months after Defendants’ filed their Answer.  As Defendants note in their reply, a party may seek leave of the court at any time to file a compulsory cross-complaint during the course of the action, as long as the party seeking leave is acting in good faith.  Defendants establish that they only discovered Ramirez’s potential contribution to liability in this matter recently after consulting with Defendants’ retained toxicology expert who indicated Ramirez may have been impaired while driving.  (Declaration of Herjit K. Rubio, ¶ 5.) 

Next, Ramirez argues that Defendants’ motion should be denied because the causes of action within the cross-complaint are duplicative of the affirmative defenses Defendants’ asserted in their Answer for indemnification and contribution.  Notwithstanding, cross-complaints may proceed even though equivalent relief could be obtained by pleading an affirmative defense in an answer to a complaint. (See, e.g., Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177, 187 [“without a corresponding special relationship, a cross-complaint for equitable indemnity is not subject to dismissal solely because an apportionment of fault is available through the assertion of affirmative defenses—the precise rationale used to strike down the cross-complaint here”]; see also Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 240 [“a named defendant is authorized to file a cross-complaint against any person, whether already a party to the action or not, from whom the named defendant seeks to obtain total or partial indemnity”].)

Finally, Ramirez argues that the late timing of Defendants’ motion for leave to file a cross-complaint unduly prejudices him because it alters the case’s landscape, requiring Ramirez to not only affirmatively prosecute the case, but also defend himself in it.  However, as Defendants note in their reply, the causes of action asserted within the cross-complaint are based on the underlying incident of the case, and are similar to affirmative defenses already asserted in the Answer.  As such, defending against the causes of action should not result in undue burden.  However, disallowing leave for Defendants to file a compulsory cross-complaint would forever bar Defendants from asserting their claims against Ramirez, which could certainly result in prejudice to Defendants.

Because the Court finds no evidence to suggest Defendants have acted in bad faith, and in consideration of the policy of avoiding forfeiture of causes of action, the Court grants the motion.

CONCLUSION AND ORDER

Therefore, the Court grants Defendants’ motion for leave to file a cross-complaint pursuant to Code of Civil Procedure section 428.10, subdivision (b), and orders Defendants to file and serve the proposed cross-complaint within 20 days of the hearing on the motion.

Defendants shall provide notice of the Court’s ruling and file a proof of service of such.