I. BACKGROUND  

Plaintiff Troy Andrew Smith (“Plaintiff”) filed this action against Defendants Peter Sherayko, Susan Sherayko, and Caravan West Productions, LLC (collectively, “Defendants”) for injuries Plaintiff sustained while working as a hired actor and riding a horse for the filming of a movie. 

Defendants seek leave to file a First Amended Answer (“FAA”) to Plaintiff’s complaint to include a tenth affirmative defense of workers’ compensation exclusive remedy. Defendants argue Plaintiff’s complaint raises the issue of the worker’s compensation exclusivity act, and that the motion for leave was not made earlier because the complaint itself raises the issue. Defendant asserts that Plaintiff will not be prejudiced by the amendment because Plaintiff has been aware of the issue.  

In opposition, Plaintiff contends that the issue was already raised in Defendants’ motion for summary judgment, and that based on the Court’s previous findings, the motion for leave is moot. Plaintiff further argues that the motion is untimely, and that Plaintiff will be prejudiced.  

In reply, Defendants assert that the motion is not moot because their motion for summary judgment was denied on the grounds that there existed triable issues of material fact. Defendants aver the amendment will not introduce any new and different issues, nor will Plaintiff suffer any prejudice. Defendants contend that if Plaintiff deems any additional discovery is necessary, then there is still ample time to conduct it.  

II. MOTION FOR LEAVE TO FILE AMENDED PLEADING  

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.)   

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.)  

The Court agrees with Defendants that it did not make any rulings on the merits of the workers’ compensation exclusivity act in this matter. Rather, the denial of Defendants’ motion for summary provided there was a triable dispute as to a material fact as to whether Defendants exercised control, such that they were Plaintiff’s employer for purposes of workers’ compensation. Whether Defendants would ultimately prevail on this assertion at trial is a different matter, and outside the scope of this motion.  

Further, even if Defendants delayed in seeking leave to amend, Plaintiff has not identified any actual prejudice. 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.) Plaintiff argues, in a conclusory manner, that the affirmative defense would unnecessarily expand the scope of this litigation. The Court disagrees. The complaint alleges, in pertinent part, that Plaintiff was working as a hired actor in the filing of “Shooting Star” and rode a horse for the filming of the movie. (Compl. at ¶ 12.) The horse proceeded to throw Plaintiff from the horse, and due to an alleged failure to ensure Plaintiff had a correctly sized saddle that was properly cinched, the horse threw Plaintiff off and trampled him. (Id. at ¶¶ 13-14.) The facts here suggest a possibility that the injuries which formed the basis of this action arose out of an employment relationship, such that there is no reason to preclude Defendants from raising an affirmative defense of the worker’s compensation exclusive remedy rule. (Doney v. Tambouratgis, (1979) 23 Cal.3d 91.) Plaintiff argues that it would be unfair to him because he “would be required to deal with a new issue at trial for which he’s not had the chance to conduct specific discovery.” However, Plaintiff does not articulate what specific discovery is necessary to such an extent that it would weigh against the liberal policy favoring amendments. The Court recently granted the parties’ joint stipulation to continue the trial date and all related dates to February 10, 2025. (Order Re: Joint Stip., April 17, 2024.) Plaintiff provides no basis as to why any remaining discovery cannot be completed within the next eight months, prior to discovery cut-off.  

III. CONCLUSION 

Based on the foregoing, Defendants’ motion to file a FAA is GRANTED. Defendants are ordered to file a separate copy of the proposed FAA within ten (10) days of the date of this Order. 

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 7th day of May 2024