SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

Plaintiff Lindsey Rubi Avila (“Plaintiff”) filed this action against Defendant the City of Los Angeles (“Defendant”) for injuries related to Plaintiff’s scooter striking a large pothole, causing Plaintiff to fall. Plaintiff sets forth two causes of action for premises liability and general negligence.  

At this time, Plaintiff seeks leave to file a First Amended Complaint (“FAC”) to set forth an applicable cause of action against Defendant pursuant to Government Code § 835, since Plaintiff’s cause of action for general negligence is not applicable to a public entity. 

Defendant conditionally opposes the motion, and Plaintiff filed a reply. 

 

II. 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.) 

Here, Plaintiff argues that she was not aware that she failed to state a valid cause of action against Defendant until Defendant served its Motion for Summary judgment on April 20, 2023. Plaintiff utilized a Judicial Council Form Complaint for her operative complaint alleging causes of action for premises liability and common law negligence, whereas the proposed FAC is an entirely new complaint on pleading paper setting forth a cause of action for dangerous condition of public property under Government Code § 835. Plaintiff states the effect of the amendment is to state a viable cause of action against Defendant, and that it is necessary because Plaintiff’s initial cause of action for general negligence is not applicable to Defendant. Plaintiff contends if the City informed Plaintiff that the complaint was defective sooner, Plaintiff would have amended the complaint at the time. 

In opposition, Defendant avers it is not Defendant’s burden to instruct Plaintiff on how to state a claim, and Plaintiff’s failure to appreciate basic pleading standards is Plaintiff’s own mistake. Defendant argues the proposed FAC adds a request for attorney’s fees not included in the original complaint, and there is no basis to recover attorney’s fees in this matter. Lastly, Defendant contends it filed a motion for summary judgment to the complaint, and because the amended pleading would supersede the original complaint, Defendant having to re-file the motion for summary judgment would be prejudicial. Defendant also notes that the proposed FAC includes new allegations, and thus Defendant requests the Court allow the City to conduct another deposition of Plaintiff as a condition for granting leave to amend.  

In reply, Plaintiff avers that she has no issue with striking the request for attorneys’ fees from the proposed FAC, and does not contest the need for Defendant to re-file its motion for summary judgment. Plaintiff, however, objects to a further deposition, and argues the facts of the case do not justify deposing Plaintiff once more.  

The Court agrees that it is not Defendant’s responsibility to instruct and guide Plaintiff on how to properly allege a viable cause of action against a public entity. This is the responsibility of Plaintiff’s counsel as Plaintiff’s attorneys. Nevertheless, judicial policy favors granting amendments, and Defendant’s only argument in terms of prejudice is that it will need to re-file its motion. In terms of the request for attorney’s fees, Plaintiff has agreed to strike it, and thus this is a non-issue. Further, the Court will not address the merits of Defendant’s argument for a second deposition of Plaintiff on this motion for leave to amend. Defendant may bring the appropriate noticed motion should it deem it necessary to depose Plaintiff again. Trial is currently set for August 19, 2024, which is sufficient time to conduct any additional discovery. 

 

Accordingly, Plaintiff’s motion to file a FAC is GRANTED. Plaintiff is ordered to file a separate copy of the FAC within 10 days.  

 

Further, in light of the filing of the FAC rendering Defendant’s motion for summary judgment moot, the Court shall make an additional order. To reduce the prejudice to Defendant as a result of the delay in seeking amendment, and per Defendant’s request, the Court will require Plaintiff to pay the filing costs incurred by Defendant in filing the summary judgment motion made moot by the late amendment pursuant to CCP § 473(a). Defendant does not provide the total filing costs incurred, and thus the Court requests defense counsel to provide this information at the time of the hearing. Plaintiff’s counsel is to pay the filing costs to Defendant’s counsel in the amount of __________ within 10 days.