Judge: Olivia Rosales, Case: BC680294, Date: 2022-12-20 Tentative Ruling

Case Number: BC680294    Hearing Date: December 20, 2022    Dept: SEC

MYERS, et al. v. COUNTY OF LOS ANGELES, et al.

CASE NO.:  BC680294

HEARING:   12/20/22 @ 1:30 PM

JUDGE:  OLIVIA ROSALES

 

#9

TENTATIVE RULING

 

I.             Plaintiff Myers’s motion to file a second amended complaint is DENIED.  Opposing Party to give NOTICE.

 

II.            Defendant Walsh Shea Corridor Constructors’ motion for monetary and evidence sanctions is DENIED.  Opposing Party to give NOTICE.

 

 

I.             Motion for Leave to Amend

 

Plaintiff Myers moves for leave to file a Second Amended Complaint (“SAC”) pursuant to CCP § 473. 

 

“A court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleadings.” (CCP § 473(a)(1).)  Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the courts discretion will usually be exercised liberally to permit amendments of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) 

 

This action was initiated on October 19, 2017.  The operative First Amended Complaint (“FAC”) alleges that Defendants illegally dumped several tons of dirt on Alameda Street, a public right of way without permission and without warning signs to the public.  On April 9, 2017, Decedent Rodney Myers, Sr. rode his motorcycle straight into the dirt, causing his death.  Based thereon, the FAC asserts causes of action for:

 

1.    Negligence (v. Walsh Shea)

2.    Negligence (v. HNTB)

3.    Negligence (v. J.F. Shea Construction Inc.)

4.    Negligence (v. Comstock Company, ARUP)

5.    Premises Liability (v. City of Compton)

 

Plaintiffs' proposed SAC adds Anytime Dumping to the 1st cause of action, adds agency allegations, removes willful failure to warn from the 2nd cause of action, removes punitive damages, and adds a claim for loss of use of property.

 

In opposition, Walsh Shea Corridor Constructors objects to the proposed amendment because Plaintiff was dilatory in seeking amendment, and the SAC adds substantive claims of agency and claims for loss of use, which has never been raised in this case.

 

A court should deny leave to amend if the plaintiff is dilatory in seeking the amendment and the delay would prejudice the opposing parties. (See e.g., Hirsa v. Sup. Ct. (1981) 118 Cal.App.3d 486. 490.)  Despite the policy of liberality in allowing amendment, the trial court may properly deny a motion for leave to amend a complaint on the eve of trial when the delay is unexplained and the amendment opens an entirely new area of inquiry.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 486-487).

 

Here, trial is set for January 18, 2023.  Discovery cut-off has passed and the parties are in the midst of expert depositions and trial preparation.  This action is almost nearing the mandatory dismissal deadline so trial cannot simply be continued to accommodate additional discovery.  In addition, CRC § 3.1324(b) requires Plaintiffs to submit a declaration containing specific facts as to the “reasons why the request for amendment was not made earlier.”  Aside from generally stating that “discovery and testimonies from parties in this case” necessitates the amendments, Ogdubu does not specify what recent discovery or testimony necessitates the amendments. 

 

This court finds that the amendment will prejudice opposing parties.  Accordingly, the motion is DENIED.

 

II.            Motion for Monetary and Evidence Sanctions

 

Defendant Walsh Shea Corridor Constructors moves for monetary and evidence sanctions pursuant to CCP §§ 2023.010, 2023.030, and 2023.050.

 

“Monetary discovery sanctions may be imposed under Code Civ. Proc., § 2023.030, only to the extent authorized by another provision of the Civil Discovery Act, Code Civ. Proc., § 2016.010 et seq. Code Civ. Proc., § 2023.010, describes conduct that is a misuse of the discovery process, but does not authorize the imposition of sanctions. The plain language of the statutory scheme does not provide for monetary sanctions to be imposed based solely on the definitional provisions of §§ 2023.010 or 2023.030, whether construed separately or together…. these definitional statutes, standing alone or read together, do not authorize the court to impose sanctions in a particular case.”  (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal. App. 5th 466, 475 and 498.)

 

Here, Defendant seeks sanctions pursuant to CCP §§ 2023.010, 2023.030, and 2023.050 because Defendant finds Plaintiffs’ responses were conflicting or evasive.  However, Defendant did not file any motions to compel further responses, and did not indicate under what other authorizing provision of the Discovery Act the motion is based.  (See City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal. App. 5th 466, 475 and 498.)

 

Accordingly, the motion is DENIED.