Judge: Serena R. Murillo, Case: 19STCV45161, Date: 2022-12-21 Tentative Ruling
Case Number: 19STCV45161 Hearing Date: December 21, 2022 Dept: 29
TENTATIVE
Plaintiff
Brandon Joaquin Rodarte Ayala’s Motion for
Leave of Court to File First Amended Complaint is DENIED.
Legal Standard
“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.” (C.C.P. § 473(a)(1).)
“Trial courts are vested with the discretion to allow amendments to
pleadings ‘in furtherance of justice.’ That trial courts are to liberally
permit such amendments, at any stage of the proceeding, has been established
policy in this state since 1901.” (Hirsa v. Superior Court (1981) 118
Cal.App.3d 486, 488-489.)
California Rules of Court, uule 3.1321(a) requires that a motion to amend
must: “[i]nclude a copy of the proposed… amended pleading… [and] state what
allegations in the previous pleading are proposed to be [deleted and/or added],
if any, and where, by page, paragraph, and line number, the [deleted and/or
additional] allegations are located…”
Rules of Court, rule 3.1324(b) provides, as follows: “[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
The Court finds it proper to deny Plaintiff
Brandon Joaquin Rodarte Ayala’s (“Plaintiff”) motion for leave to file a first amended complaint (“FAC”) for the
following reasons.
First, as Defendant Xue
Zhe Jin (“Defendant”) points out in his
opposition, Plaintiff’s moving papers do not comply with California Rules of
Court, rule 3.1321(a) and 3.1324(b) above. The motion fails to state where, by
page, paragraph, and line number, the additional allegations are located. In
addition, Plaintiff’s counsel’s declaration fails to explain why the request
for amendment was not made earlier.
Second, and related to the point above, Plaintiff unduly delayed in
bringing this motion. Plaintiff argues that he “recently discovered” facts that
would cast doubt on Defendant’s insurer’s affidavit which declared that
Defendant was not acting within the scope of his employment at the time of the
automobile collision. However, Plaintiff’s counsel’s declaration shows
Plaintiff already doubted that declaration even before he filed this lawsuit.
Counsel testifies that months before Plaintiff filed this lawsuit (on December
23, 2019), Plaintiff received an affidavit from Defendant’s insurer on May 20,
2019 (the “Affidavit”), declaring that Defendant was not in the course of
employment at the time of incident. (Motion, declaration of Christian Kim (“Kim
Decl.”), ¶ 4.) In response to that Affidavit, Plaintiff’s counsel sent a letter
to the insurer informing them that “Plaintiff is in possession of facts
that indicate [Defendant] was in the course of employment at the time of the
incident.” (Kim Decl., ¶ 4 [emphasis added].) After counsel threatened that
Plaintiff will not release Defendant from liability until the insurer provides
the contact information of Defendant’s employer, the insurer (on or around June
19, 2019) replied as follows: “It appears [Defendant] did pick up some supplies
for the construction site just prior to the loss.” (Kim Decl., ¶ 6.) Therefore,
months before Plaintiff even commenced this lawsuit, he was already “in possession
of facts” that casted doubt of the insurer’s declaration in the Affidavit that
Defendant was not acting within the scope of his employment at the time of the
incident. The insurer’s response also suggested to Plaintiff that his
suspicions were correct. Therefore, Plaintiff could have brought his proposed
causes of action at the beginning of this lawsuit and, in fact, fails to
explain why he did not seek discovery as to that issue until this year in 2022.
Accordingly, Plaintiff cannot now claim that he “recently discovered” facts for
which he now seeks leave to add.
Third, Defendant will be prejudiced by the amendment. Trial is only
months away and this case is quickly approaching its 5-year mark. Defendant has
pending motions based on the allegations in the Complaint, including a motion
for summary judgment. Allowing the Plaintiff to amend his Complaint now will
result in the Court moving the trial date as Defendant will need sufficient
time to respond to the Complaint, conduct discovery on the new allegations, and
file dispositive motions (if any).
For those reasons, Plaintiff’s motion to amend his Complaint is
denied.
Conclusion
Plaintiff
Brandon Joaquin Rodarte Ayala’s Motion for
Leave of Court to File First Amended Complaint is DENIED.
Moving party is ordered to give notice.
***
TENTATIVE
Attorney James Y. Chu's motion to be relieved as counsel for defendants James Ha and IPark, Inc. is GRANTED.
Counsel
has filed the requisite forms pursuant to CRC Rule 3.1362. Counsel has served the forms on Defendants and
opposing counsel and confirmed Defendants’ addresses by Latest Statement of
Information filed with the California Secretary of State by providing that
defendant I Park, Inc.’s address, 1025 S. Alvarado St., Suite 100, Los Angeles,
CA 90006 is listed as both the Principal and Mailing Address for I Park Inc,
and Defendant James Ha is listed as the Chief Executive Officer, Secretary,
Chief Financial Officer, and Registered Agent for Service of Process for I Park
Inc. at the same address.
Counsel
declares that irreconcilable differences of opinion between Defendants and
Counsel has led to a complete breakdown in the attorney-client relationship.
As the Final Status Conference is set for March
13, 2023, and trial is set for March 27, 2023, Defendants will not suffer
prejudice if Counsel is permitted to withdraw.
Court sets an OSC re: Status of Defendant's Representation on March 1, 2023 at 10:00 a.m.
Accordingly,
the motion to be relieved as counsel is GRANTED. Attorney Chu to give notice of this order, and the OSC date. The order will become effective upon filing the proof of service with the court.