Judge Stephen Morgan, Case 21AVCV00469 2022-12-15 Tentative Ruling

This is a personal injury action stemming from a motor vehicle incident. Plaintiff Oscar Cruz (“Plaintiff”) alleges that on August 05, 2019 on Sierra Highway (northbound), Defendants NFI, L.P.; Cal Cartage Transportation Express, LLC (“Cal Cartage”), and Fredy Rolando Ramirez (“Ramirez” and, with Cal Cartage, “Defendants”) owned, operated, and maintained motor vehicle that negligently collided with Plaintiff’s vehicle, causing Plaintiff to suffer physical, mental, and emotional damage as well as property damage.

On June 10, 2021, Plaintiff filed his Complaint alleging two causes of action for (1) General Negligence and (2) Motor Vehicle.

On June 30, 2021, Plaintiff filed his First Amended Complaint (“FAC”) alleging the same causes of action.

On October 20, 2022, Defendants filed this Motion for Leave to Filed First Amended Answer (“Motion for Leave to File FAA”).

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing on this matter is set for December 15, 2022. As such, an Opposition was due no later than December 02, 2022. Should an Opposition be filed, it is now untimely.

Standard for Leave to Amend Answer – “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.” (Cal. Code Civ. Proc. § 473(a)(1).)

California law holds that leave to amend is to be granted liberally, to accomplish substantial justice for both parties. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 488-89.) “Assuming proper notice, the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment. The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court’s denial of the amendment.’” (Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613. Absent prejudice, trial delay alone is not grounds to deny a motion for leave to amend. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 563-65.) In particular, liberality is displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense. (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 115

Application – Defendants seek to add four affirmative defenses: (1) Sudden/Imminent Emergency, (2) Superseding Cause, (3) Implied Indemnity, and (4) Mitigation of Damages.

Defense counsel, Kristian Moriarty (“Moriarty”) presents that it was not until taking Plaintiff’s deposition on June 29, 2022 and reviewing Plaintiff’s responses to written discovery that the new affirmative defenses became apparent. (Decl. Moriarty ¶¶ 3-4.) Specifically, Plaintiff stated in his deposition that he hit his breaks suddenly because the vehicle in front of him applied his breaks suddenly to make a left turn across the highway.[1] (Exh. B 26:15-25, 27:1-25, 28:1-5.)

Moriarty also states that “it was not until after Defendants’ retained expert, Luke Macyszyn, M.D. (“Dr. Macyszyn”), conducted an Independent Medical Examination of Plaintiff, on July 11, 2022, that the defense of “Failure to Mitigate Damages” became apparent.” (Opposition 4:7-9.) However, the report is not attached to either Moriarty or Dr. Macyszyn’s declaration. Dr. Macyszn’s declaration provides only limited insight. That is, Dr. Macyszyn states in his declaration that he, based on a reasonable degree of medical probability, concluded that “Mr. Cruz was not injured secondary to the accident in this case. Therefore, there is likewise no permanent injury. The laser diskectomy performed on plaintiff was not clinically indicated, and hence, is in no way related to the 2019 accident in this case.” (Decl. Dr. Macyszyn ¶ 3.)

Moriarty presents that the delay from July 26, 2022 (date of receipt of the Independent Medical Examination report) to the present, approximately a little less than six months, has been due to efforts to stipulate to the filing of an Amended Answer. Attached exhibits depict attempts to stipulate to the filing of an Amended Answer that occurred on September 23, 2022. (See Exhs. C and D.)

The Court finds Defendants’ motion to be properly presented. That is, the new affirmative defenses are sought to encompass information that has been brought to light from discovery.

Accordingly, the Court GRANTS the Motion for Leave to File a FAA in the interests of justice as failure to do so would permanently deprive Defendants of these new defenses. (See Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 115.)

Defendants Cal Cartage Transportation Express, LLC and Fredy Rolando Ramirez’s Motion for Leave to File First Amended Answer is GRANTED.

[1] The Court notes that there is inconsistent testimony as Moriarty asks Plaintiff if he braked moments before the collision and Plaintiff states, “I was simply driving straight going about 45 to 55 miles an hour.” (Exh. B 23:17-25, 24:1.)