Judge Serena R. Murillo, Case 19STCV13772 2023-03-20 Tentative Ruling

Judge: Serena R. Murillo, Case: 19STCV13772, Date: 2023-03-20 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE. 4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020)

IMPORTANT: In light of the COVID-19 emergency, the Court encourages all parties to appear remotely. The capacity in the courtroom is extremely limited. The Court appreciates the cooperation of counsel and the litigants.

ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV13772 Hearing Date: March 20, 2023 Dept: 29

TENTATIVE

Plaintiffs Sung Chun Park and Kyoung Soon Park’s motion for leave to file an amended complaint is GRANTED.

Legal Standard

California Code of Civil Procedure section¿473, subdivision¿(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party¿to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.¿ The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”¿

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿¿(Kittredge Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿ Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿ The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿¿(See¿California Casualty General Ins. Co. v. Superior Court¿(1985) 173 Cal.App.3d 274, 281¿(overruled on other grounds by¿Kransco¿v. American Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390).)¿

Furthermore, ‘it is irrelevant that new legal theories are introduced as long as the proposed amendments “relate to the same general set of facts.” [Citation.]’ ”]; Hirsa, supra, 118 Cal.App.3d at p. 490.) Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

Under¿California Rules of Court¿Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (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 allegations 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.¿

Under¿California Rule of Court¿Rule 3.1324(b), a separate declaration must accompany the motion and 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.¿

Discussion

Plaintiffs seek leave to file an amended complaint to add a cause of action against Defendant under Civil Code section 3342, the dog bite statute. Plaintiff’s counsel failed to plead this cause of action through inadvertence. There is no prejudice to the Defendants since this cause of action arises out of the same occurrence as the cause of action which Plaintiffs allege in their complaint, to wit, that Plaintiffs were lawfully on Defendants' private property and Defendants' unsecured dog attacked Plaintiff Sung Chun Park.

In opposition, Defendants argue that Plaintiffs filed their original Complaint on April 22, 2019, nearly 3 1/2 years ago, and had ample time amend it but instead failed to do so. Allowing leave to amend at this time would constitute unfair prejudice to Defendants who would now need to defend against additional facts not previously pled or identified. Then Defendants argue Plaintiffs are now trying to amend the complaint on the eve of trial with the same set of facts they had at original filing and adding a cause of action for strict liability Defendants. Defendants argue that Plaintiffs have no reasonable excuse for the delay.

The Court finds Plaintiff has generally complied with CRC Rule 3.1324. The Court also finds that, despite Defendant’s argument, permitting Plaintiffs to file an amended complaint would not prejudice Defendants. First, Plaintiff’s counsel states that upon review, he discovered that the strict liability cause of action was not pled through inadvertence. Further, ‘it is irrelevant that new legal theories are introduced as long as the proposed amendments “relate to the same general set of facts.” (Hirsa, supra, 118 Cal.App.3d at p. 490.) The strict liability cause of action relies on the same facts as the negligence cause of action based on the dog bite. Further, trial is not until May 1, 2023, and thus, it is not the eve of trial.

Accordingly, the Court exercising its discretion liberally in favor of amendments, grants the motion for leave to file an amended complaint.

Conclusion

Based on the foregoing, Plaintiffs’ motion for leave to file an amended complaint is GRANTED. Plaintiffs are ordered to file the complaint attached as Exhibit 1 within 10 days of this order.

Moving party is directed to give notice.