Judge: Michelle C. Kim, Case: 19STCV04503, Date: 2023-08-24 Tentative Ruling


Case Number: 19STCV04503    Hearing Date: August 24, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

JOHN NEWMAN, 

Plaintiff(s), 

vs. 

 

JOSE ALVARADO, ET AL., 

 

Defendant(s). 

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      CASE NO: 19STCV04503 

 

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 

 

Dept. 31 

1:30 p.m. 

August 24, 2023 

 

1. Background Facts 

On February 11, 2019, Plaintiff John Newman (“Plaintiff”) filed this action against defendants Jose Alvarado (“Alvarado”), Ricardo Almanza Bernal (“Almanza”), and Nissin International Transport U.S.A., Inc. (“Nissin”) (collectively, Defendants”) for damages arising out of a motor vehicle accident.   

At this time, Plaintiff seeks leave to file a First Amended Complaint (“FAC”)1 to set forth another cause of action for negligent selection and hiring by Nissin, and request punitive damages against Defendants.  Nissin opposes the motion, and Plaintiff filed a reply.   

 

  1. Moving Argument 

Plaintiff seeks to file the proposed FAC to add a fourth cause of action for negligent selection and hiring against Nissin, and request for punitive damages against Nissin. Plaintiff contends that at time of the accident, Nissin was a broker that selected and hired Almanza and Alvarado. Plaintiff alleges that Nissin hired Almanza and Alvarado without performing a background check or investigation prior to hiring, which would have discovered that Alvarado had poor driving history, was driving with a suspended license, and not covered by commercial insurance coverage. Plaintiff asserts that Plaintiff learned of the facts supporting the request for punitive damages during written discovery and after the deposition of Nissin’s person most knowledgeable (“PMK”). Plaintiff contends there will be no prejudice to defendants. 

  

  1. Opposing Argument 

Nissin argues that it had a contract with Almanza to make deliveries on behalf of Nissin, and that Plaintiff delayed more than four years before seeking leave to file an amended pleading. Nissin contends that it served responses to Plaintiff’s initial discovery on November 4, 2019. Further, Nissin served responses to Plaintiff’s set two of discovery on March 13, 2020. On June 21, 2022, Plaintiff took the deposition of Nissin’s PMK. Nissin contends Plaintiff inexcusably delayed in seeking leave to amend, and that Plaintiff did not obtain any new facts to justify the request to amend the pleading.  Nissin’s discovery responses identified itself as a freight forwarder, and provided that Alvarado was not Nissin’s employee. Nissin argues that as of November 2019, Plaintiff had notice that Nissin had contracted with Almanza as an independent contractor. Furthermore, Nissin’s production of documents on March 13, 2020, in response to Plaintiff’s propounded discovery, provided a copy of the Independent Contractor Agreement between Nissin and Almanza. Lastly, Nissin contends that Plaintiff’s allegations do not support a claim for punitive damages.  

 

  1. Reply Argument 

Plaintiff contends that on May 25, 2023, Plaintiff’s counsel spoke with an expert on shipping and broker liability, and it was during this conversation and review of the Federal Motor Carrier Safety Administration’s website that the expert advised Plaintiff’s counsel there was a basis for negligent selection and hiring against Nissin. Plaintiff further argues that even if there was an unreasonable delay, there is no prejudice to any defendant because the trial date is in one year.  

 

 

2. Motion for Leave to File First Amended Complaint  

CCP § 473(a)(1) provides, in relevant part:  “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.”  

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”  (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)  Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.  The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.  (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281, overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.) 

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, 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.  

Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (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.  

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial.  In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party.  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.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)  Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) 

In this case, Plaintiff’s counsel’s declaration submitted with the moving papers does not comply with California Rules of Court, Rule 3.1324(b).  In particular, the declaration does not provide when the facts giving rise to the proposed amendments were discovered and the reasons why the request for amendment was not made earlier. Furthermore, Plaintiff provides no detail as to when Plaintiff discovered Alvarado’s alleged poor driving history, suspended license, and that Alvarado was not covered by commercial insurance coverage. Even if Plaintiff purportedly discovered these facts during Nissin’s PMK deposition on June 21, 2022, Plaintiff fails to provide any explanation as to why Plaintiff sought leave to amend one year after the PMK’s deposition. In fact, Plaintiff’s counsel’s additional declaration submitted with the reply, which the Court notes is improper because Nissin cannot respond to evidence presented for the first time with the reply brief, provides that Plaintiff’s counsel discovered the grounds for the proposed fourth cause of action for negligent selection and hiring after speaking with an expert on shipping and broker liability on May 25, 2023.  (Reply. Kashani Decl. ¶ 3.) Plaintiff provides no specification as to why Plaintiff waited nearly four years after Nissin identified itself as a freight forwarder, and one year after Nissin’s PMK’s deposition, to discuss potential legal theories with an expert and to seek leave to amend. (CRC Rule 3.1324(b)(4).) 

 

Accordingly, Plaintiff’s motion for leave to amend is denied.   

 

Plaintiff is ordered to give notice.  

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 23rd day of August 2023 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court