Judge: Michael E. Whitaker, Case: 23SMCV03244, Date: 2025-01-16 Tentative Ruling

Case Number: 23SMCV03244    Hearing Date: January 16, 2025    Dept: 207

TENTATIVE RULING - NO. 1

BACKGROUND

This case arises from an incident where Plaintiff became trapped in the back of the Victoria’s Secret store where she worked during an active shooter situation at the mall where the store was located. 

On July 18, 2023, Plaintiff Ashlee Nicole Saldana (“Plaintiff”) brought suit against Defendant Culver City Mall, LLC (erroneously sued as Westfield Corporation) (“Defendant”) alleging two causes of action for (1) premises liability; and (2) negligence and negligent hiring, training, supervision, and/or retention. 

On June 3, 2024, Plaintiff added Defendant Allied Universal Security Services Universal Protection Service LPP (“Allied”), via Doe amendment. 

On September 25, 2024, Allied answered the Complaint and filed its own Cross-Complaint against Roes 1 through 20 for apportionment of fault, indemnity, declaratory relief, and negligence. 

Plaintiff now moves for leave to amend the complaint.  Defendant opposes the motion and Plaintiff replies.

LEGAL STANDARD

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 2023) ¶ 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.”

DISCUSSION

            Plaintiff seeks to add allegations about the newly-named Allied Defendant, as well as additional factual allegations, including that Plaintiff was instructed to communicate using a specific mall application, and of Plaintiff’s prior reporting of safety concerns, as well as to correct grammatical errors.

            Counsel indicates the amendment was not requested sooner because counsel wanted to review the deposition transcript for Plaintiff’s worker’s compensation claim filed against Victoria’s Secret only, which counsel did not receive until November 4, 2024, and due to counsel’s excusable neglect in failing to keep track of the trial deadline. 

            The Court finds that Plaintiff’s motion does not satisfy the procedural requirements of Rule 3.1324(b).  As a threshold matter, the Court cannot clearly discern, based on Counsel’s declaration exactly what allegations are proposed to be added to the Complaint, because Plaintiff has not provided the Court with sufficient detail of all changes, nor has Plaintiff provided a redline for the Court to review.

            Further, neither Plaintiff’s motion nor the accompanying declaration clearly state the effect of the proposed amendments.  Based on the motion, it appears that Plaintiff is simply adding additional factual detail.  Based on Defendant’s opposition, it sounds like Plaintiff is adding causes of action or expanding the theory of liability. 

            Nor has Plaintiff indicated when the facts giving rise to the amended allegations were discovered.

CONCLUSION AND ORDER

            Therefore, Plaintiffs’ motion for leave to amend the complaint is denied without prejudice on procedural grounds for failure to comply with the requirements of Rule 3.1324(b). 

            The Court orders Plaintiff to provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  January 16, 2025                            ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court

TENTATIVE RULING- NO. 2

BACKGROUND

This case arises from an incident where Plaintiff became trapped in the back of the Victoria’s Secret store where she worked during an active shooter situation at the mall where the store was located. 

On July 18, 2023, Plaintiff Ashlee Nicole Saldana (“Plaintiff”) brought suit against Defendant Culver City Mall, LLC (erroneously sued as Westfield Corporation) (“Defendant”) alleging two causes of action for (1) premises liability; and (2) negligence and negligent hiring, training, supervision, and/or retention. 

On June 3, 2024, Plaintiff added Defendant Allied Universal Security Services Universal Protection Service LPP (“Allied”), via Doe amendment. 

On September 25, 2024, Allied answered the Complaint and filed its own Cross-Complaint against Roes 1 through 20 for apportionment of fault, indemnity, declaratory relief, and negligence. 

The Final Status Conference is currently scheduled for January 17, 2025 and a 5-7 day jury trial is scheduled for February 10, 2025. 

On November 19, 2024, the parties filed a joint stipulation to continue the FSC, trial date, and attendant discovery and motion cut-off dates by approximately seven months, which the Court denied for insufficient good cause because the parties “failed to outline with specificity” the outstanding non expert and expert discovery to warrant continuing the trial.  (See Minute Order, Dec. 4, 2024.)

On December 10, 2024, Plaintiff applied ex parte to continue the trial, which the Court denied for failure to make an affirmative factual showing of irreparable harm, immediate danger, o rother statutory basis for granting ex parte relief, failure to demonstrate why the matter is appropriately handled as an emergency hearing, and failure to demonstrate that Plaintiff is without fault in creating the crisis that requires ex parte relief.  (See Minute Order, Dec. 12, 2024.)

Plaintiff now moves again to continue the trial, FSC, and attendant cut-off dates.  Plaintiff’s motion is unopposed and Defendant has filed a notice of non-opposition.

ANALYSIS

“Continuances are granted only on an affirmative showing of good cause requiring a continuance.”  (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)  A trial court has broad discretion in considering a request for a trial continuance.  (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)  California Rules of Court rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.  Whether the parties have stipulated to the postponement is a relevant factor for consideration.  (See Code Civ. Proc., § 595.2, but see Lorraine v. McComb (1934) 220 Cal. 753, 756-757 [finding a stipulation to be merely “directory].)

            California Rules of Court, rule 3.1332(c), provides:

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits.  The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.  Circumstances that may indicate good cause include:

(1)  The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2)  The unavailability of a party because of death, illness, or other excusable circumstances;

(3)  The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4)  The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5)  The addition of a new party if:

(A)  The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B)  The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6)  A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7)  A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

Factors the Court considers in ruling on a motion for continuance include:

(1)  The proximity of the trial date;

(2)  Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3)  The length of the continuance requested;

(4)  The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5)  The prejudice that parties or witnesses will suffer as a result of the continuance;

(6)  If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7)  The court's calendar and the impact of granting a continuance on other pending trials;

(8)  Whether trial counsel is engaged in another trial;

(9)  Whether all parties have stipulated to a continuance;

(10)  Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11)  Any other fact or circumstance relevant to the fair determination of the motion or application.

(Cal. Rules of Court, rule 3.1332(d).)

            Plaintiff argues that a trial continuance of at least six months is warranted because “Plaintiff has not yet had the opportunity to complete the Person Most Qualified depositions for Culver City Mall, LLC and Allied Universal Security Service; Plaintiff anticipates both defendants will object to some of the categories for deposition thus requiring additional motion work including knowledge and information pertaining to knowledge of similar criminal activity on the property, and knowledge of prior complaints from store in owners inside the mall with defective or malfunctioning doors.”  (Motion at pp. 7-8.)

            Plaintiff’s deposition is currently scheduled for January 17, 2025, but “Plaintiff is awaiting the new trial date so she can coordinate Person most Qualified depositions for each of the defendants.”  (Kantzabedian Decl. ¶¶ 18-19.)    

            Plaintiff will also “require depositions by defendants’ management and security personnel to establish knowledge of dangerous and hazardous conditions on the property, including doors….”  (Kantzabedian Decl. ¶ 21.)

            Plaintiff also points out that Allied was recently added as a party to the lawsuit and only answered the complaint on September 9, 2024.  (Kantzabedian Decl. ¶ 22.)

            Also, Plaintiff “is executing a discovery plan that includes Plaintiff’s deposition, Person Most Qualified depositions for each defendant (dates to be determined), and written discovery (in process).”  (Kantzabedian Decl. ¶ 23.) 

            Further, “Plaintiff is in the process of obtaining records under California Freedom of Information Act from relevant public agencies” and requires additional time “to receive, review, and incorporate this information into case preparation.”  (Kantzabedian Decl. ¶ 24.)

            Further, Plaintiff needs additional time to pursue settlement discussions and mediation before trial.  (Kantzabedian Decl. ¶ 25.)

            Plaintiff’s failure to timely pursue and obtain discovery from Defendant does not constitute good cause warranting a continuance.

            However, Allied’s recent addition to the case, the need to conduct fulsome discovery from Allied, to obtain and analyze records sought from public entities under California’s Freedom of Information Act, and pursue, as appropriate, mediation or settlement prior to trial do constitute good cause warranting the requested continuance.

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion to continue trial and orders as follows:

·       The trial date, currently set for February 10, 2025 is continued to September 15, 2025 at 10:00 A.M. in Department 207.

·       The Final Status Conference, currently set for January 17, 2025, is continued to August 29, 2025 at 9:30 A.M. in Department 207.

·       All discovery and pre-trial motion cut-off dates shall be based upon the trial date of September 15, 2025.

·       Per the Discovery Act, the parties shall meet and confer forthwith to schedule and complete all non-expert discovery and to prepare for the completion of expert discovery to obviate the need for a further continuance of the trial.  Plaintiff shall take the lead in ensuring that this order is complied with. 

·       The Court issued a Trial Preparation Order on February 5, 2024.  The Parties shall obtain a copy of the Order and comply with it. 

·       No further continuance of the trial absent sufficient good cause. 

            Plaintiff shall provide notice of this order and file a proof of service forthwith.

DATED:  January 16, 2025                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court