Judge: Michael E. Whitaker, Case: 21STCV09224, Date: 2023-05-05 Tentative Ruling

Case Number: 21STCV09224    Hearing Date: May 5, 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

Defendants Shippers Transport Express, Inc. and Tony Doninelli (collectively, Defendants) move the court for an order granting leave to file a First Amended Answer (FAA). Defendants assert that the proposed FAA is necessary to assert additional affirmative defenses based on Civil Code section 333.4 and Plaintiff’s failure to wear a seatbelt.  Plaintiffs Eduardo Ramirez (Ramirez) and Jorge Medrano (Medrano) separately oppose the motion.  Defendants reply.

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.”

1.      Affirmative Defense - Civil Code section 3333.4

Defendants argue that leave should be granted to add an affirmative defense based on information discovered after filing the initial Answer indicating Ramirez was not properly insured at the time of the incident.  Defendants advance the declaration of their counsel, Herjit K. Rubio (Counsel), in support of the motion.  Counsel avers on July 13, 2021, Ramirez served his written discovery responses on Defendants in which he indicated that he was insured by Alliance United Insurance Company at the time of the incident.  (Declaration of Herjit K. Rubio, ¶ 2, Exhibits A, B.)  On February 11, 2022, Counsel subpoenaed Alliance, requesting the complete file related to any insurance provided to Ramirez under Alliance.  (Declaration of Herjit K. Rubio, ¶ 5.)  On September 20, 2022, Defendants received Alliance’s response to the subpoena to which no proof of insurance was provided.  (Declaration of Herjit K. Rubio, ¶ 5.)  On October 6, 2022, Counsel’s office discovered Defendants’ initial answer did not include an affirmative defense under Civil Code section 3333.4 regarding Ramirez’s failure to have insurance and thus immediately filed a motion for leave to amend Defendants’ answer.  (Declaration of Herjit K. Rubio, ¶ 6.)  On December 12, 2022, Counsel received an answer to an amended subpoena propounded on Alliance which further confirmed that Ramirez was not an insured under an Alliance policy.  (Declaration of Herjit K. Rubio, ¶¶ 7-8.) 

In opposition, Ramirez notes that this motion reflects Defendants’ third attempt to amend their answer and further argues that this third request should be denied because it is unjustified and untimely.  However, the Court notes that Defendants’ first motion for leave to amend, heard by the Court on December 20, 2022, was denied without prejudice due to procedural deficiencies which have largely been remedied by defense counsel declaration filed in support of the instant motion.  Further, Defendants’ second request for leave to amend was within an Ex Parte Application which was denied on February 7, 2023.  Finally, the Court notes Defendants received Alliance’s subpoena response on September 20, 2022, and Defendants filed their initial motion for leave to amend on October 13, 2022.  The Court denied Defendants’ initial motion on December 20, 2022, and Defendants’ refiled the instant motion for leave to file a FAA on January 26, 2023.  Based on the foregoing, the Court does not find Defendants’ application for relief to be untimely. 

Medrano argues in opposition to the affirmative defense related to Civil Code section 3333.4 that said affirmative defense is inapplicable as to Medrano.  The Court finds that this argument is related to the merits of the proposed amendment which is not considered when determining whether to grant leave to amend.  (See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) 

Accordingly, the Court finds that Defendants have met their burden in establishing a factual and legal basis for leave to amend the answer regarding Civil Code section 3333.4.

2.      Affirmative Defense - Failure to Wear Seatbelt

The Court notes, as Medrano highlights in opposition, that Defendants have failed to include an affirmative defense related to Plaintiff’s purported failure to wear a seatbelt at the time of the incident in their proposed FAA.  (Declaration of Herjit K. Rubio, ¶ 9, Exhibit E.)  Further, Defendants have failed to indicate how and when they discovered Plaintiffs were not wearing their seatbelt at the time of the accident, and why Defendants did not request leave to add said affirmative defense earlier.  Therefore, the Court finds Defendants’ motion for leave to amend their answer as to their proposed seatbelt affirmative defense has failed to comply with California Rules of Court 3.1324 and is thus procedurally defective.

CONCLUSION AND ORDER

Therefore, the Court grants in part Defendants’ motion for leave to amend the answer regarding Civil Code section 3333.4, and denies in part Defendants’ motion for leave to amend the answer regarding Plaintiffs’ failure to wear a seatbelt as procedurally defective. 

The Court further orders Defendants to file and serve the proposed FAA on or before May 26, 2023. 

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