Judge Salvatore Sirna, Case Number: 22PSCV00319, Date: 2023-08-15 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV00319, Date: 2023-08-15 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22PSCV00319 Hearing Date: August 15, 2023 Dept: G

Plaintiff Joshua Hartley’s Motion for Leave to Amend the Complaint

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Joshua Hartley’s Motion for Leave to Amend the Complaint is GRANTED. Plaintiff is ordered to file the proposed Third Amended Complaint attached to the declaration of Plaintiff’s counsel separately with the court forthwith.

BACKGROUND

This is a disability rights action. Plaintiff Joshua Hartley is a physically disabled individual who relies on mobility devices, including a wheelchair, to ambulate. Defendant Haat Investments, LLC owns commercial real property in Glendora.

On November 3, 2021, Plaintiff visited a liquor store on Defendant’s Glendora property to purchase a beverage. During the visit, Plaintiff alleges the following barriers to access existed: (1) a built-up curb ramp that projects from sidewalk into the access aisle in excess of maximum grade allowed by ADA Standards for Accessible Design and (2) an obstructive wheel stop positioned within the access aisle. On August 9, 2022, a Certified Access Specialist (CASp) alleged additional barriers including: (1) van accessible space near liquor store that contains slope measuring as high as 4.3%, (2) van accessible space near liquor store with cross-hatching measuring 43 inches and no contrasting paint, (3) closest accessible space to liquor store contains slope measuring between 2.7% and 4.2%, (4) curb ramp from accessible aisle near liquor store contains slopes measuring as high as 2.8%, (5) van accessible space near laundromat has cross-hatching measuring between 37 inches and 43 inches, (6) accessible space closest to laundromat contains slope measuring between 3.6% and 15%, (7) accessible route from public right of way contains slope measuring 6.6% with no handrails at ramp adjacent to liquor store, (8) accessible route from public right of way contains cross-slope measuring between 2.3% and 2.8% between Suite 344 and the Cleaners, (9) accessible route from public right of way contains slope measuring between 6.1% and 8.2% with no handrails at ramp adjacent to Salon Centric, (10) accessible route from public right of way contains slope measuring between 6.1% and 7.5% with no handrails at ramp adjacent to laundromat, (11) curb ramp maximum cross slope measuring between 3.2% and 4.7% on left ramp run, (12) curb ramp from accessible aisle closest to laundromat has slopes measuring between 3.7% and 6.3%, and (13) curb ramp from accessible aisle closest to laundromat contains slopes measuring as high as 3.4% on right ramp run.

On April 1, 2022, Plaintiff filed a verified complaint against Defendant and Does 1-10, alleging violation of the Unruh Civil Rights Act (UCRA). On November 28, Plaintiff filed a First Amended Complaint (FAC) against the same defendants alleging the same cause of action. On January 24, 2023, the court sustained a demurrer by Defendant to Plaintiff’s FAC with leave to amend.

On February 17, 2023, Plaintiff filed a Second Amended Complaint (SAC) against the same defendants alleging the same causes of action. On May 23, the court sustained Defendant’s demurrer to Plaintiff’s SAC with leave to amend.

On July 21, 2023, Plaintiff filed the present motion. A hearing on the motion and a case management conference are set for August 15 with a motion to dismiss by Defendant set for August 29.

ANALYSIS

Plaintiff seeks leave to file a Third Amended Complaint (TAC) that alleges additional facts about Plaintiff’s disability device. For the following reasons, the court GRANTS Plaintiff’s motion.

Legal Standard

“A court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc., § 473, subd. (a)(1).) The court’s discretion will usually be exercised liberally to permit amendments of the pleadings. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.)“A motion to amend a pleading before trial must . . . [s]tate 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 [s]tate 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.” (Cal. Rules of Court, rule 3.1324(a).) The declaration must also specify the amendment’s effect, why it is necessary and proper, when the facts supporting the amended allegations were discovered, and why the request was not made earlier. (Cal. Rules of Court, rule 3.1324(b).)

If the party seeking the amendment has needlessly delayed, and the delay has prejudiced the opposing party, the court has the discretion to deny leave to amend. (See 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. (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

Discussion

In this case, Plaintiff seeks to file a TAC that purported to cure the defects noted in Defendant’s demurrer to Plaintiff’s SAC. In opposing Defendant’s demurrer to the SAC, Plaintiff admitted that the SAC inadvertently failed to cure defects noted previously and provided a proposed TAC. On this basis, the court sustained Defendant’s demurrer to the SAC and provided Plaintiff with ten days’ leave to amend. After Plaintiff failed to timely amend the SAC, Plaintiff filed this motion and admitted that Plaintiff had failed to amend the SAC because Plaintiff was under the mistaken impression that the proposed TAC in Plaintiff’s opposition would be automatically filed. (Jankowski Decl., ¶ 6.)

Based on the declaration of Plaintiff’s counsel, the court finds good cause exists to allow Plaintiff’s amendment. The court also finds any prejudice to Defendant is minimal or nonexistent as Defendant’s counsel waited more than twenty days before warning Plaintiff’s counsel that a TAC had not been filed and forced Plaintiff to make this motion by declining to stipulate to Plaintiff’s filing of an amendment. (Jankowski Decl., Ex. 3.)

Accordingly, Plaintiff’s motion is GRANTED.

CONCLUSION

Based on the foregoing, Plaintiff’s motion for leave to file a TAC is GRANTED and Plaintiff is ordered to file the proposed TAC attached to the declaration of Plaintiff’s counsel separately with the court forthwith.