Judge Ralph C. Hofer, Case Number: 23GDCV00027, Date: 2023-10-13 Tentative Ruling

Plaintiff Angela Mendoza brings this action against defendants Mohave Transportation Insurance Company and Joseph Samaha for damages plaintiff alleges plaintiff suffered arising from a motor vehicle cause of action.

The operative complaint, the First Amended Complaint, is a form complaint which attaches no cause of action forms. The initial complaint alleges that defendant Samaha negligently operated a motor vehicle in January of 2022 on the interstate 5 in Glendale and alleges that the defendant who employed the person who operated the motor vehicle in the course of their employment is Hero Transport LLC, but does not name Hero Transport as a defendant in the initial allegations.

The file shows that on October 13, 2023, the court heard four discovery motions filed by defendant Mohave Transportation Insurance Company, to compel plaintiff to respond to Form Interrogatories, Special Interrogatories, Requests for Production of Documents and to deem Requests for Admissions admitted. The unopposed motions were granted, and monetary sanctions were awarded in favor of moving defendant and against plaintiff in the sum of $941.65 for the motion to compel responses to Form Interrogatories, and $831.65 for each of the other three motions, payable within thirty days.

“The Court strikes the Second Amended Complaint filed without leave of Court on 06/23/2023….. Plaintiff is to file a Noticed Motion For Leave to File An Amend Complaint.”

On February 26, 2024, after this motion was filed (on January 16, 2024), plaintiff filed a Substitution of Attorney, substituting for plaintiff representing self the Law Office of Cierra ESQ.

On March 29, 2024, the court heard an unopposed motion for terminating sanctions filed by defendant Mohave Transportation Insurance Company seeking terminating sanctions for plaintiff’s failure to comply with the court’s October 13, 2023 discovery orders.

The court issued its tentative ruling via posting on LACourt.org website. Plaintiff’s counsel appeared at the hearing, but there was no appearance for defendant, the court noting that plaintiff’s counsel had informed the court that defense counsel was unable to register for LACC but was submitting on the court’s tentative ruling. The court’s tentative ruling was to deny the motion in part, specifically, to deny terminating, issue or evidentiary sanctions, and order plaintiff to fully comply with the October 13, 2023 order, “within ten days, including the service of further verified responses, and including the payment of the monetary sanctions awarded in connection with the underlying order.” The tentative further awarded further monetary sanctions requested by the moving party, in the sum of $1,320 plus filing fee of $60 against plaintiff Mendoza.

After hearing argument, the court adopted its tentative ruling as its final orders, “with the following modification: Sanctions in the amount of $1,320.00 is vacated against plaintiff Angela Mendoza.” [Minute Order 3/29/2024, p. 1].

The proof of service filed with the motion does not show that this motion was served on the other parties but is a proof of service for plaintiff’s motion for reconsideration, which was originally noticed to be heard on April 5, 2024, not this date.

There is no proof of service showing that this motion for leave to amend was in fact served, or that defendants have notice of the motion or this hearing date, which raises due process concerns, and which could explain why there is no timely opposition.

CCP § 473 (a)(1) provides that “The court may..., in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading...” Plaintiff’s motion was accordingly required to by made on “notice,” when there is no proof that notice was given. Unless plaintiff can provide proof of service of this motion before or at the hearing, the court will not consider the motion.

(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 allocations 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.”

The motion does not include a copy of the proposed amended pleading, although the motion mentions that the motion is based on “the Proposed Second Amended Complaint attached hereto and served and filed herewith.” There is no proposed Second Amended Complaint attached and no proof of service indicating it was served.

The motion does not state what allegations are proposed to be added or deleted, and does not specify where, by page, paragraph and line number, these additional allegations are located. Particularly since there is no proposed pleading submitted, this makes it impossible to determine if the amendments are necessary and proper.

There is no declaration supporting the motion, as required under subdivision (b). There is no document submitted which is signed under penalty of perjury, as would be required of a declaration under CCP § 2015.5, which requires that whenever any matter is required to be supported by a sworn “affidavit,” or “declaration,” such matter may be supported or proved by a statement in writing “which recites that it is certified or declared…to be true under penalty of perjury, is subscribed” by the declarant, and “if executed within this state, states the date and place of execution.” None of this has been done here.

Even if the motion itself were to be considered a declaration, which it is not, the motion indicates generally that the effect of the amendment is to add Hero Transport LLC to the complaint, and that this entity employed defendant Joseph Samaha who operated the motor vehicle in the course of his employment at the time of the accident, and the entity which is insured of defendant Mohave Transportation Insurance Company.

It is not directly explained why the amendment is necessary and proper, when the facts giving rise to the amendment were discovered by plaintiff, or reasons why the request to amend was not made earlier. In fact, it appears that there was some reference to Hero as a defendant in the original complaint according to form complaint language, which would suggest plaintiff has been aware of the identity of this potential party for some time.

These procedural defects prevent the court from properly analyzing whether relief is properly granted. The motion as presented is denied by the court for the failure to serve it and to comply with the mandatory requirements for such a motion. The motion is denied without prejudice to plaintiff, now that plaintiff is represented by counsel, bringing another motion which gives notice to the appropriate parties and complies with all procedural requirements.

The court would suggest that any further motion propose to file an amended pleading which is drafted by counsel, not the pleading previously filed without leave by plaintiff when plaintiff was self-represented which was stricken by the court.

There is no proof of service which shows notice of this motion, as opposed to a Motion for Reconsideration, has been served on the other parties, giving rise to due process concerns.

The motion also fails to comply with the mandatory requirements of CRC Rule 3.1324(a) and (b), as the motion does not include a copy of the proposed amended pleading, does not state what allegations are proposed to be added or deleted, or specify where, by page, paragraph and line number, these additional allegations are located.

There is no declaration supporting the motion, as required under subdivision (b), with the appropriate information. The motion itself is not a declaration, but also fails to provide that information, as it fails to explain why the amendment is necessary and proper, when the facts giving rise to the amendment were discovered by plaintiff, or reasons why the request to amend was not made earlier.

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