Judge: Michael Shultz, Case: 23CMCV00725, Date: 2024-08-22 Tentative Ruling
Case Number: 23CMCV00725 Hearing Date: August 22, 2024 Dept: A
23CMCV00725 Yesenia
Flores v. Alfredo Acero, et al.
[TENTATIVE] ORDER
I.
BACKGROUND
The
complaint alleges that Defendant’s dog bit Plaintiff as she walked on the
sidewalk in front of Defendants’ home. Plaintiff alleges claims for negligence,
premises liability, and strict liability. Defendants filed their answer on July
5, 2023.
II.
ARGUMENTS
Plaintiff
seeks leave to amend the complaint to add a claim for punitive damages.
Plaintiff learned of facts after taking Defendant, Alfredo Acero’s, deposition on
April 8, 2024 as well as the deposition of the animal control officer who
investigated the incident. Defendants will not suffer prejudice as the
amendment is another damage claim based on the same set of facts.
In
opposition, Defendants argue Plaintiff does not explain the reason for the
delay in amending the pleading. Plaintiff did not take the deposition of the
animal control officer until seven months after Plaintiff learned of his
identity. Plaintiff delayed discovery. Defendants contend they will suffer
prejudice because they are likely to demur to the proposed amended pleading
which will delay trial setting.
In
reply, Plaintiff argues that Defendants caused the delay by requesting on
February 2, 2024, that Plaintiff “hold off” on taking depositions. Defendant’s
deposition was thereafter postponed due to conflicts until April 8, 2024. The
deposition of the animal control officer could not be taken until June 27,
2024, because defense counsel was going to be out of the country from May 24,
2024 through June 17, 2024. Defendants will not suffer prejudice since a trial
date has not been set.
III.
LEGAL STANDARDS
Leave
to amend is permitted at the court’s discretion upon any terms that may be
just. (Code Civ. Proc., §
473 subd. (a)(1).) The statute is liberally construed to permit amendment
of the pleadings “unless an attempt is made to present an entirely different
set of facts by way of the amendment.” (Atkinson
v. Elk Corp. (2003) 109 Cal.App.4th 739, 760.)
If the
motion is timely made, and the granting of the motion will not result in
prejudice to the opposing party, it is error to refuse permission to amend. (Morgan
v. Superior Court of Cal. In and For Los Angeles County (1959) 172
Cal.App.2d 527, 530.) Where denial of the motion will result in a party
being deprived of the right to assert a meritorious cause of action, “it is not
only error but an abuse of discretion.” (Id.) Amendments are permitted
up to the date of trial or during trial where no prejudice is shown to the
adverse party. (Atkinson
v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)
IV.
DISCUSSION
Defendants
have not shown that the delay in seeking leave to amend was unreasonable, given
the depositions were delayed at defense counsel’s request. (Reply decl., Ex. 1-2.)
Plaintiff’s counsel did not discover facts to support the amendment until the
depositions were taken. (Todd Krauss decl., ¶ 6.)
Defendants
have not shown prejudice resulting from the amended pleading such as “such as
delay in trial, loss of critical evidence, or added costs of preparation."
(Bidari
v. Kelk (2023) 90 Cal.App.5th 1152, 1173.) Defendants argue that they
may demur to the amended pleading, which is entirely within Defendants’ control,
and any further delay will result from that decision. A trial date has not yet
been set.
V.
CONCLUSION
Based
on the foregoing, Plaintiff’s motion is GRANTED. Plaintiff is ordered to file
and serve the first amended pleading within