Judge: Serena R. Murillo, Case: 21STCV14908, Date: 2023-03-23 Tentative Ruling

Case Number: 21STCV14908    Hearing Date: March 23, 2023    Dept: 29

TENTATIVE

 

Plaintiff Demetra Stuart’s motion for leave to amend the complaint is GRANTED. Plaintiff is ordered to file the first amended complaint attached as Exhibit 1 to her motion within 10 days of this order.

 

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).)¿ 

 

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

Plaintiff seeks leave to amend the complaint, adding a claim for dangerous condition of public property against Defendant based upon information elicited through discovery on August 8, 2022. This amendment is also necessary and proper as it will enable advancement of a cognizable claim directly related to the dangerous condition of property, notice and maintenance. Plaintiff argues that Defendant will not be prejudiced by the addition of the new claim. Defendant appeared in this action less than 6 months ago. Since then, Plaintiff has acted cooperatively with new counsel, especially in light of their new introduction into this case. Further, trial is not until September 13, 2023.

The Court finds Plaintiff has complied with CRC Rule 3.1324 by including a copy of the proposed amended complaint and indicating what allegations are proposed to be added to the previous pleading, and what allegations are proposed to be deleted.  Plaintiff also explains that she obtained the information required for her cause of action for dangerous condition of public property through the course of discovery in August of 2022. This is sufficient to explain why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why it was not made earlier. 

 

As Defendant has not opposed the motion for leave to amend, it does not appear it would be prejudiced by permitting this amendment. Further, trial is set for September 13, 2023; thus, there is sufficient time to conduct discovery and prepare for trial.

 

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

 

Conclusion

 

Based on the foregoing, Plaintiff’s motion for leave to amend the complaint is GRANTED. Plaintiff is ordered to file the first amended complaint attached as Exhibit 1 to her motion within 10 days of this order.

 

Moving party is directed to give notice.