SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background Facts 

On May 25, 2022, Plaintiff Nancy Pivaral-Duran (“Plaintiff”) filed this action against Defendant Super Center Concepts, Inc. d/b/a Superior Grocers (“Defendant”) alleging a cause of action for premises liability. The complaint bears no allegations. The complaint references allegations of “Prem.L-1 through Prem.L-5” without the referenced attachment. (Compl. at p. 3.)  Trial is currently set for November 22, 2023.   

At this time, Plaintiff seeks leave to file a First Amended Complaint (“FAC”) to add a new cause of action for premises liability due to inadvertence of Plaintiff’s counsel’s staff. Defendant opposes the motion, and Plaintiff filed a reply.    

Plaintiff asserts that at the time of the filing of the complaint, that Plaintiff utilized a form complaint and marked item number 10(e) for premises liability, in which there should be an attachment for the cause of action. Due to the inadvertence of Plaintiff counsel’s staff, the attachment was not filed together with the original Complaint. Plaintiff provides the absent attachment for premises liability, in which Plaintiff alleges that on June 4, 2020, “While lawfully on defendant's property, a Superior Grocers, located at 111 E Compton Blvd, Compton, CA 90220, plaintiff slipped and fell on fruit that was on the floor, thereby proximately causing bodily injuries and damages within the jurisdictional limits of this Court.” (Mot. Decl. Darbinyan, Exh. 2.) 

In opposition, Defendant asserts that Plaintiff is seeking to retroactively add facts to the complaint that were not initially present. Defendant contends that the facts/cause of action for premises liability Plaintiff seeks to add is barred by the statute of limitations because the incident occurred on June 4, 2020, and Plaintiff had until June 4, 2022 to allege facts constituting a cause of action. Defendant argues that Plaintiff cannot show that the cause of action relates back to the same facts previously alleged, and therefore the proposed amendment is barred by the statute of limitations. Furthermore, Defense counsel contends that they informed Plaintiff’s counsel on September 12, 2022 that there is no explanation of the alleged incident, and that Plaintiff’s counsel failed to take steps to amend the Complaint until now.  

In reply, Plaintiff’s counsel avers that Plaintiff should not be deprived of her right to pursue her suit due to Plaintiff’s counsel’s mistake and inadvertence. (CCP § 473(b).) Plaintiff’s counsel contends that Defendant will not be prejudiced by the amendment because some details of Plaintiff’s incident were mentioned in the responses and medical reports Plaintiff had produced in discovery. Plaintiff’s counsel did not provide a declaration or any admissible evidence in support of her contentions.  

 

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.) 

Defendant provides a copy of Plaintiff counsel’s email, dated November 9, 2022, in which Plaintiff requested Defendant to stipulate to a FAC to include the missing cause of action attachment. Plaintiff did not bring this motion until May 3, 2023, but avers that it was due to the lack of hearing availabilities on the Court’s online reservation system. Plaintiff contends that Defendant will not be prejudiced because Defendant had notice of the date of loss, Plaintiff’s name, and location of the incident based upon the preservation of evidence letter sent on July 15, 2020. 

Defendant contends it will be prejudiced due to the statute of limitations. The issue here is whether the FAC relates back to the original filing of the Complaint for the Court to grant Plaintiff leave to amend.  

A complaint must contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” (§ 425.10, subd. (a)(1).) “The requirement that the complaint allege ultimate facts forming the basis for the plaintiff's cause of action is central to the relation-back doctrine and the determination whether an amended complaint should be deemed filed as of the date of the original pleading. (See Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 533 [explaining essential role of fact-pleading requirement in application of relation-back doctrine].) An amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, only if it rests on the same general set of facts and refers to the same “offending instrumentalities,” accident and injuries as the original complaint. [citations] [“where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts”].)” (Davaloo v. State Farm Ins. Co. (2005) 135 Cal. App. 4th 409, 415.) 

Plaintiff’s original Complaint is devoid of any factual allegations. “Just as a plaintiff who changes the essential facts upon which recovery is sought is not entitled to the benefits of the relation-back doctrine, so too a plaintiff who files a complaint containing no operative facts at all cannot subsequently amend the pleading to allege facts and a theory of recovery for the first time and claim the amended complaint should be deemed filed as of the date of the original, wholly defective complaint: Going from nothing to something is as much at odds with the rationale for allowing an amended pleading to relate back to the filing of the original documents as changing from one set of facts to a different set.” (Id. at 416.) Because Plaintiff’s initial Complaint did not meet the basic requirements of CCP § 425.10 (a), it is the functional equivalent of no complaint at all. Accordingly, the Court is unable to grant leave to file the proposed FAC when it is, on its face, time-barred. (CCP § 335.1.) 

 

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