SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

Plaintiff Demetrio Montanez (“Plaintiff”) filed this action against Defendants Los Angeles Unified School District and County of Los Angeles when a gate fell on Plaintiff. On April 21, 2022 and January 20, 2023, Plaintiff dismissed the County of Los Angeles and Los Angeles Unified School District. On December 22, 2022, Plaintiff filed amendments to complaint naming A-1 Fencing as Doe 1 and Turner Construction as Doe 2. 

At this time, Plaintiff seek leave to file a First Amended Complaint (“FAC”) to allege causes of action applicable to private entities, because the allegations in the operative complaint currently contain allegations pertinent to public property. The motion is unopposed.  

The Court previously denied the motion without prejudice due to procedural deficiencies. (Min. Order, Oct. 4, 2023.) The motion was re-filed, but continued from November 14, 2023 to January 30, 2024 so that Plaintiff may submit a supplemental brief and declaration to comply with California Rules of Court, rule 3.1324(b). (Min. Order, Nov. 14, 2023.)  

On January 17, 2024, Plaintiff filed the supplemental brief and declaration. The Court will now consider the motion on the merits. 

 

II. Motion for Leave to File FAC  

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’s renewed motion complies with CRC, Rule 3.1324(a) and CRC, Rule 3.1324(b). Plaintiff provides a redlined copy of the proposed FAC demonstrating the location and the changes made to the operative complaint. The supplemental declaration declares that the effect of the amendment is to assert the proper causes of action against defendants A-1 Fencing and Turner Construction, and that it is necessary and proper to add both entities. Plaintiff discovered the two additional defendants in late October 2022, and declares she was not aware that the additional defendants would be used in the amended complaint. Plaintiff does not properly explain why she first sought to amend the complaint approximately nine months after discovery of A-1 Fencing and Turner Construction. Nonetheless, this matter is not yet old, no parties oppose the motion, and there is no apparent prejudice by way of the amendment.  

Based on the foregoing, Plaintiff’s unopposed motion for leave to file a FAC is GRANTED. Plaintiff is ordered to file a separate copy of the proposed FAC within ten (10) days of the date of this Order.