TENTATIVE RULING

Calendar: 8

Date: 8/18/2023

Case No: 23 GDCV01099       Trial Date: None Set 

Case Name: Honarchian, et al. v. City of Glendale, et al.

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Moving Party:      Plaintiffs Soseh Honarchian, Arpa Bostanian, through GAL, and Areg 

Responding Party:      Defendants City of Glendale, City of Los Angeles, Ashken Pogosyan, 

individually and as trustee, and Douglas Jewett (No Opposition)  

RELIEF REQUESTED:

Effect of Amendment 

Dismiss public entity defendants from cause of action for negligence, add a cause of action for Liability for Dangerous Condition of Public Property against public entity defendants, strike claims for punitive damages against public entity defendants only.

RELEVANT FACTS:

The complaint is brought by the surviving spouse of decedent Masis Tatius, plaintiff Soseh Honarchian, and decedent’s minor surviving children, plaintiffs Arpa Bostanian and Areg Bostanian.  The complaint alleges that on the evening of June 12, 2022, plaintiffs’ decedent was traveling westbound on an electric scooter along a sidewalk in Glendale, which sidewalk was owned, operated, leased, maintained, or managed by defendants City of Glendale, City of Los Angeles and County of Los Angeles.  Plaintiffs allege that prior to the incident, the subject sidewalk was dangerously, poorly, and negligently designed, constructed, operated, managed, inspected, maintained and/or controlled, and featured an inadequate and unreasonably narrow pathway with poor and inadequate lighting conditions.  

The complaint also alleges that prior to the incident the planting beds located on the northern ends of properties owned by defendant Asken Pogosyan, individually and as trustee, and defendant Douglas F. Jewett, individually and as trustee, immediately adjacent to the southern edge of the subject sidewalk, were dangerously, poorly, and negligently designed, constructed, operated, managed, inspected, maintained and/or controlled, and remained unsecured with significantly deeper height differentials than that of the subject sidewalk’s concrete pathway in addition to inadequate lighting conditions. 

The complaint alleges that as a result of the dangerous conditions posed by and existing on the subject sidewalk, defendant Pogosyan’s property and defendant Jewett’s property, decedent was thrown off the electric scooter and onto the concrete floor, leaving him with severe, incapacitating and traumatic injuries, which ultimately resulted in his untimely death. 

ANALYSIS:

Procedural

Proof of Service

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...”  (Emphasis added). 

The proof of service does not show that notice of this motion, rather than a copy of a First Amended Complaint, has been served on the adverse parties.  This situation could explain why there has been no opposition to the motion filed by the parties other than the City of Glendale, which evidently agreed that an amended pleading should be filed.  [See Bedrossian Decl., para. 5].   

Unless proof of service of the motion itself can be shown at the hearing, the court may decline to consider the motion until proper notice of it has been given to the adverse parties.   

Statutory Requirements 

As noted above, the motion fails to comply with several procedural requirements for bringing a motion to amend a pleading.  

Rule 3.1324(a) of the CRC provides that a motion to amend a pleading before trial

 “must:..

(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.”

Subdivision (b) requires that a separate declaration accompany the motion which 

“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.”

Although the motion indicates generally what causes of action and claims are dismissed against certain parties, and what cause of action has been added against which parties, there is no designation by page, paragraph, or line number what is new.  This circumstance makes it difficult for the court to evaluate the motion.  

In addition, the declaration does not clearly indicate when the need to amend was discovered, mentioning unspecified meet and confer discussions with counsel for one defendant, and does not explain why these amendments could not have been made sooner, such as during the time plaintiffs would have been permitted leave to amend once as a matter of course.  The motion could be denied for failure to follow the mandatory procedures.   If the service issue is satisfactorily addressed, however, and it becomes clear that no other party objects, the court will nevertheless consider the motion on its merits.  

Substantive

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...”  The court’s discretion should usually be exercised liberally to permit amendment of pleadings.    Nestle v. City of Santa Monica (1971) 6 Cal.3d 920, 939.  This is especially true where the motion to amend is timely made and the granting of the motion will not prejudice the opposing party.  Morgan v. Superior Court (1959, 2nd Dist.) 172 Cal.App.2d 527, 530.  

The Second District in Record v. Reason (1999) 73 Cal.App.4th 472, set forth the standard for reviewing the trial court’s discretionary determination on a motion to amend:

“"[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]" (Bedolla v. Logan & Frazer (1975) 52 Cal. App. 3d 118, 135-136 [125 Cal. Rptr. 59].)”

Record, at 486.

In this case, the amendments made are primarily to add a cause of action for Liability for Dangerous Condition of Public Property as against the public entity defendants, and to drop those defendants from the negligence claim, as well as to eliminate the claim for punitive damages against the public entity defendants.  The declaration indicates that these amendments are primarily intended to add or alter legal theories based on facts and allegations which were already pleaded and are made based on meet and confer sessions with counsel for one of the public entity defendants, the City of Glendale, with respect to defendant’s intent to file a demurrer and motion to strike to the original complaint.  [Bedrossian Decl., paras. 5, 6].  

Permitting amendment under these circumstances is appropriate, as a demurrer to a negligence cause of action against a public entity would likely be subject to a meritorious demurrer under Government Code § 815 (“Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of a the public entity or a public employee or any other person” (Emphasis added).  The punitive damages sought against the public entities would also likely be subject to a meritorious motion to strike under Government Code § 818 (“Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”)  It is appropriate to instead of sustaining a demurrer to the negligence cause of action against these defendants without leave to amend that it would be most appropriate to permit plaintiffs to preserve their ability to pursue the public entity defendants under a statutory dangerous condition of public property theory pursuant to Government Code § 835 (“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property…).   

      

Although it is not clear from the moving papers when these omissions or errors were first discovered and how long of a delay there has been in seeking amendment, the amendments are necessary and proper to ensure that all potential claims concerning the incident against the differently positioned defendants can be determined in one matter. 

It does not appear from the moving papers or the file that there would be any prejudice to defendants from permitting amendment, as a trial date has not yet been set and no proceedings have occurred which would determine any rights or obligations of any of the parties.  No timely written opposition has been filed objecting or pointing out any prejudice, and the moving papers indicate that counsel for one of the public entity defendants, the City of Glendale, has agreed to the proposed amendments.  [Bedrossian Decl., para. 5]. 

Absent prejudice, delay alone is held not to be a sufficient ground for denial of leave to amend, and where no prejudice is shown, “the liberal rule of allowance prevails.”  Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.   There is no prejudice urged here at all, and no obvious existence of prejudice which is the type of prejudice which would ordinarily justify denying leave to amend, such as loss of evidence which due to the delay has been destroyed, cannot be recollected, or cannot be replaced.  

The liberal rule of allowing amendment accordingly prevails here, and the motion is granted. 

Ruling:

[No Opposition]

Was the motion itself, in addition to the First Amended Complaint, served on all of the adverse parties?

Are plaintiffs aware of any objection to permitting leave to amend?

UNOPPOSED Motion for Leave to File First Amended Complaint is GRANTED.  

A separate signed copy of the First Amended Complaint is ordered to be filed on eCourt no later than close of business this date, and the First Amended Complaint will be deemed served on the current parties upon the efiling of the First Amended Complaint.  

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearances.  However, ADVANCE REGISTRATION IS REQUIRED. 

If no appearance is set up through LACourtConnect/Microsoft Teams, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.