Judge: Nick A. Dourbetas, Case: 2021-01196874, Date: 2022-09-09 Tentative Ruling

1. Motion for Judgment on the Pleadings
2. Motion for Leave to File Amended Complaint

Plaintiffs Kevin Palmer and James Palmer’s motion for leave to file a Second Amended Complaint is GRANTED.

Plaintiff has complied with the procedural requirements necessary to obtain the requested relief (Declaration of David N. Barry, paragraphs 4 through 7.) The proposed Second Amended Complaint is attached to the moving papers as Exhibit A.

Defendant argues leave to amend should be denied as amending the complaint would not cure the defects and would be futile. The court does have discretion to deny a motion for leave to amend where the amendment would be futile. Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719. However, defendant has not shown the amendment would be futile as a matter of law.

The case of Everardo Rodriguez, et al. v. FCA US, LLC (April 7, 2022, E073766) 77 Cal. App. 5th 209, 2022 WL 1042907 does not undisputedly bar plaintiffs’ Song-Beverly claims. The case is currently under review by the Supreme Court. Although the Supreme Court’s order did say the case could still be cited, it stated the holding was not binding. It stated in part:

Pending review, the opinion of the Court of Appeal, which is currently published at 77 Cal.App.5th 209, 292 Cal.Rptr.3d 382, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321, 369 P.2d 937, to choose between sides of any such conflict.

Rodriguez v. FCA US (Cal. 2022) 295 Cal.Rptr.3d 351.

Further, defendant’s argument that plaintiffs’ claims are barred by failure to comply with mandatory pre-dispute resolution requirements is premature. Typically, courts will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend, since grounds for demurrer or motion to strike are premature—after leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading. (See Kittredge Sports Co. v. Superior Court, (1989) 213 Cal. App. 3d 1045.

As such, any arguments defendant has regarding the sufficiency of the proposed Second Amended Complaint may be addressed by a demurrer directed specifically to that pleading.

As the proposed pleading was attached as an exhibit to the moving papers, plaintiffs shall, forthwith, electronically submit the pleading for filing. The Second Amended Complaint is deemed served upon all parties who have appeared herein.

Defendant’s motion for judgment on the pleadings is moot.

Plaintiffs to give notice.