Judge: Stephen Morgan, Case: 22AVCV00771, Date: 2023-02-28 Tentative Ruling

Case Number: 22AVCV00771    Hearing Date: February 28, 2023    Dept: A14

Background

This is a personal injury action arising from an incident occurred at Discovery Elementary School, located at 44910 17th Street East, Lancaster, CA. Plaintiff Alayla Wright, by and through her Guardian ad Litem, Tiffany Thurston (“Plaintiff”), alleges that on or about October 25, 2021 at approximately 3:00 pm, she was playing tag with other students in the presence of at least one school aide when it started to rain, making the surface of the floor wet and slippery. Plaintiff further alleges that the school aide and Doe Defendants 52-75 failed to stop the game and another student, labelled as Doe Defendants 76-95, persisted in playing tag and struck and pushed Plaintiff, causing her to fall to the ground. Plaintiff believes that (1) after it started raining and the surface became slippery and dangerous persisted for such a period of time, presented such an open and obvious hazard and danger to students playing on the wet surface and (2) in the exercise of due care, a school aide should have detected the dangerous condition and stopped the game. Defendant Lancaster School District (“LANCSD”) and Defendant Cindy Queen (“Queen” and collectively “Defendants”) were the employers of Doe Defendants 51 through 75. Plaintiff presents that a claim was filed to LANCSD pursuant to the California Government Tort Claims Act, subsequently denied.

On October 10, 2022, Plaintiff filed her Complaint.

The operative pleading is the First Amended Complaint (“FAC”), filed on December 13, 2022, alleging four cases of action for: (1) Dangerous Condition of Public Property; (2) Negligence; (3) Negligent Hiring, Supervision, and Retention; and (4) Vicarious Liability.

On January 12, 2023, Plaintiff filed this Motion for Leave to File a Second Amended Complaint (“SAC”).

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 is set for February 28, 2023. An Opposition was due by February 14, 2023. “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this [Cal. Code Civ. Proc. § 1005].” (Cal. Code Civ. Proc. § 1005(b).)

On February 16, 2023, Plaintiff’s filed a Notice of Non-Opposition.

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Legal Standard

Standard for Leave to Amend – Trial courts may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Cal. Code Civ. Proc., §473(a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) Trial courts may also, in their discretion and 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); Branick, supra, 39 Cal.4th at 242.) Leave to amend is generally liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) Additionally, “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.) Trial courts may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Branic, supra, at 242.)

Under California Rules of Court Rule 3.1324, a motion to amend a pleading before trial must (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. (Cal. Rules of Court, Rule 3.1324(a).) A separate supporting declaration specifying (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 reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

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Discussion

Application – Plaintiff seeks leave to file a second amended complaint (“SAC”). Plaintiff presents that she seeks to amend the FAC due to a meet and confer correspondence with Defendants. Plaintiff has attached the meet and confer letter relating to the filing of this motion as Exhibits B and C, each relating to a respective defendant.

This motion is unopposed.

Plaintiffs have attached their proposed SAC as Exhibit A. However, it does not follow California Rules of Court Rule 3.1324. That is, the proposed SAC does not “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 “. . .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.” (See California Rules of Court Rule 3.1324(a)(2)-(3).

The Court GRANTS the Motion for Leave to File SAC upon the filing of a California Rules of Court Rule 3.1324 compliant pleading.

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Conclusion