Judge Serena R. Murillo, Case Number: 21STCV00972, Date: 2023-10-11 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. 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. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On January 11, 2021, Plaintiff Danielle Hemple (“Plaintiff”) filed this action against Defendant

Bristol Farms (“Defendant”). Plaintiff alleges negligence and premises liability against

Defendant for an incident in which Plaintiff slipped and fell in a puddle of water while in

On February 1, 2023, this Court granted leave to allow Plaintiff to amend the Complaint to add a

request for punitive damages. On February 7, 2023, Plaintiff filed a First Amended Complaint

containing prayers for punitive damages. On April 17, 2023, the Court granted Defendant’s

motion to strike Plaintiff’s First Amended Complaint as to the punitive damages allegations with

leave to amend. On May 8, 2023, Plaintiff filed a Second Amended Complaint (“SAC”). On June 7, 2023, Defendant filed a motion to strike Paragraphs 13-30 in the SAC and the Prayer for punitive

damages. On July 17, 2023, the Court granted Defendant’s motion to strike as to Paragraphs 13-30 in the SAC, and the Prayer for punitive damages without leave to amend.

Plaintiff, at this time, moves for leave to file Third Amended Complaint (“TAC”) against Defendant. On September 28, 2023, Defendant filed an opposition to Plaintiff’s motion for leave to file Third Amended Complaint. On October 4, 2023, Plaintiff filed a reply to the opposition.

Plaintiff seeks to add a separate cause of action for general negligence against Defendant. Defendant contends the proposed TAC is based on the same set of facts as all earlier versions of the pleadings, refers to the same incident that occurred on February 3, 2019, and seeks recovery for the same injuries suffered by Plaintiff as alleged in the original complaint. Plaintiff requests that the proposed TAC be deemed by this court to be the amended pleading and that it be deemed filed and served as of the date of the Court’s ruling on this motion. Further, Plaintiff argues Defendant will not be prejudiced if the motion is granted.

In opposition, Defendant contends that Plaintiff’s newly asserted theory of negligence is untimely because it is not based on the same general set of facts or the same instrumentality as the original negligence claim and violates the two-year statute of limitations. Defendant argues that Plaintiff’s motion is improper because she fails to explain expanding her existing pleading less than four months before trial. Defendant also claims that the granting of Plaintiff’s motion would prejudice Defendant and deprive them of an opportunity to prepare a proper defense including prepare and serve a motion for summary adjudication and complete discovery on this new cause of action.

In reply, Plaintiff argues that the amended complaint is deemed filed as of the time the original complaint is filed to avoid the statute of limitations. Plaintiff asserts the extent of discovery to be completed on the negligence cause of action is de minimis and Plaintiff, other parties, and witnesses do not have to be deposed again. Plaintiff does not oppose a trial continuance to allow Defendant to file a motion for summary judgment. Plaintiff contends there will be no prejudice to Defendant because Plaintiff agrees to continue trial.

CCP § 473(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.)

Under CRC 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 CRC 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.

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. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (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 such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

Plaintiff has satisfied California Rules of Court, rule 3.1324, subdivision (a). Plaintiff seeks to add a new cause of action. Plaintiff submitted the Proposed TAC and identified where the changes would take place. (Liberatore Decl., ¶ 3; Exh. A.)

Defendant asserts that Plaintiff fails to provide a valid justification for her delay in filing this motion. The evidence suggests that Plaintiff waited at least four months before seeking leave to file the TAC. However, Plaintiff’s counsel asserts that he did not make the request earlier because “[h]e did not have the presence of mind to bring the cause of action. (Liberatore Decl., ¶ 8.) Plaintiff’s counsel explains that the case before had a site-specific focus and the pleadings before were” based on a reasonable belief that the information would exist after discovery… However, the theory became viable and crystallized once I obtained additional evidence in my independent investigation.” (Id.) The Court finds that Plaintiff’s counsel explains the reasons why the request for amendment was not made earlier. Accordingly, Plaintiff satisfies California Rules of Court, rule 3.1324, subdivision (b).

The statute of limitations for filing an action for personal injuries is two years from the date of the injury. (Code Civ. Proc., § 335.1.) A motion for leave to amend could be properly denied where there is a statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) However, an amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, if it rests on the same general set of facts and refers to the same “offending instrumentalities,” accident and injuries as the original complaint. (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 151.)

Here, Plaintiff is seeking to add new facts to a new cause of action. Plaintiff seeks to add that the subject injury involved a “baconed” mat by the front door on a rainy day in the Bristol Farms Store. The original complaint does not mention anything about the floor mats at the Bristol Farms store. Rather, the complaint states “Plaintiff was caused to fall by the wet floor as she was exiting the register area and walking towards the exit doors.” (Complaint ¶ 8.) While Plaintiff attaches the complaint from Danusha Rembaum v. Bristol Farms, et al., LASC Case No. 19STCV14789, these allegations brought against Bristol Farms do not arise out of the same facts stated in this case. (Mot., Exh. C.) Although Defendant admits Plaintiff’s new negligence claim relates to the same injuries claimed by Plaintiff from the February 3, 2019 incident, Plaintiff’s original complaint did not assert that the wet “baconed” floor mats caused Plaintiff to fall. The Court finds that Plaintiff’s new cause of action is not based on the same material facts and allegations and thus, Plaintiff cannot appeal to the relation back doctrine. Therefore, Plaintiff’s new cause of action is barred by the statute of limitations and the relation back doctrine does not apply.

Accordingly, Plaintiff’s motion for leave to file an amended complaint is denied.

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Hon. Michelle Kim

Judge of the Superior Court