SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Plaintiff, Silvana Moretti Vieira Palmieri (“Plaintiff”), filed this action against Defendants, City of Beverly Hills (“City”), Douglas Emmett 2013 (“DE”), and Does 1 to 100 for wrongful death, in which Helena Santos (“Decedent”) allegedly tripped and fell upon a crack in the pavement and sustained a right hip fracture. As a result of surgeries to repair the hip, Decedent developed an infection at the surgery site and passed from complications. Plaintiff is the sister and only heir of Decedent. Plaintiff filed amendments to complaint naming DE 8484, LLC as Doe 1, and DE 8484 Wilshire, LLC as Doe 2. Multiple cross-complaints were filed.  

As relevant to the instant motion, on February 25, 2022, the City filed a cross-complaint against DE and Roes 1-25 for (1) indemnification, (2) apportionment of fault, (3) declaratory relief, and (4) express indemnity pursuant to Resolution No. 72-R-455. 

At this time, the City seeks to file a first amended cross-complaint (“FACC”) to add a fifth cause of action for express indemnity, change the classification of DE from a “Business Entity unknown” to a Limited Liability Company, and, due to a substitution of attorney, to amend the names of counsel and the signing attorney’s name. No opposition has been filed. 

 

2. Motion for Leave to Amend Cross-Complaint  

The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect.  (Code Civ. Proc., § 473, subd. (a)(1).)  “Public policy dictates that leave to amend be liberally granted.”  (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.)  “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial . . . this policy should be applied only ‘where no prejudice is shown to the adverse party.’  [Citation].  A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown.  [Citation.]”  (Magpali v. Farmers Group, Inc. (1996) 47 Cal.App.4th 1024, 487.)  

A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located.  (Cal. Rules of Court, Rule 3.1324(a).)  The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier.  (Cal. Rules of Court, Rule 1.324(b).)  

The City’s counsel provides the amended cross-complaint will not introduce any new issue or fact, and the effect of the amendment is to introduce two agreements to provide further basis for indemnification, namely Covenant Nos. 26-72 and 28-94. The City avers that it entered into Covenant No. 26-72 with DE on June 18, 1970. Further, the City provides that Covenant No. 28-94 was included in DE’s production of documents on January 30, 2023. However, due to a substitution of attorney on June 10, 2022, the City’s new counsel was unaware of Covenant No. 28-94 until later. After becoming aware Covenant No. 28-94, the City’s counsel reviewed and discussed with the City’s experts on April 7, 2023, and contacted DE’s counsel for a property inspection, in efforts to determine this covenant’s applicability and effect. The inspection moved forward on June 6, 2023. On June 23, 2023, the City requested DE stipulate to the filing of the amended cross-complaint, and DE’s counsel did not respond as of June 27, 2023. Thereafter, the City filed the instant motion on July 11, 2023. The declaration of Counsel for the City sufficiently satisfies the requirements of Cal. Rules of Court, Rule 1.324(b).  

Further, the City provides a copy of the proposed FACC, and sufficiently identifies the location of the proposed additions in its moving papers. (Cal. Rules of Court, Rule 3.1324(a).) No party filed an opposition to this Motion. Trial in this action is scheduled for January 19, 2024, and no party will suffer prejudice as a result of this amendment.  

 

 The motion for leave to file an amended cross-complaint is GRANTED. The City is ordered to file its proposed FACC within ten (10) days of the date of this Order. 

 

Moving party is ordered to give notice.