Judge Steven A. Ellis, Case Number: 21STCV17234, Date: 2023-10-17 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV17234, Date: 2023-10-17 Tentative Ruling

Case Number: 21STCV17234 Hearing Date: October 17, 2023 Dept: 29

Tentative

The motion for leave to amend is GRANTED.

Background

This case arises out of an alleged motor vehicle accident that occurred on May 8, 2019. On May 6, 2021, Plaintiff Hannah Khatib (“Plaintiff”) filed a complaint asserting causes of action for general negligence and motor vehicle negligence against Defendants Joshua Brett Logan, Frances Echeverria (“Defendants”) and Does 1 to 100, inclusive.

On April 22, 2022, Defendants filed an answer that included a general denial but no affirmative defenses.

On April 13, 2023, Defendants filed the instant motion to file a First Amended Answer. The proposed amended answer (attached to the moving papers) would, if allowed, add thirteen affirmative defenses alleging (among other things) that Plaintiff failed to state a cause of action, that the accident was caused by Plaintiff’s own negligence or the negligence of others and not Defendants’ alleged negligence, that Plaintiff voluntarily assumed the risk, that Plaintiff’s claims are barred by the statute of limitations, that Plaintiff did not mitigate her damages, that Plaintiff was not wearing a seatbelt, and that Plaintiff’s damages claims are speculative. On October 3, 2023, Plaintiff filed an opposition. On October 9, 2023, Defendant filed a reply.

Trial is set for February 7, 2024.

Summary

Moving Arguments

Defendants argue that this motion is made on the grounds that it is in furtherance of justice to allow Defendants to file the proposed amended answer. The amended answer includes affirmative defenses. Defendants’ Answer to Plaintiff’s Complaint currently contains no affirmative defenses. Defendants argue that they retained new counsel on March 17, 2023. After her evaluation of the matter, new counsel determined that an amended answer with affirmative defenses must be filed. Defense counsel argues that amendment is necessary to ensure that Defendants are not permanently deprived of important, meritorious defenses.

Opposing Arguments

Plaintiff argues that the motion is procedurally defective as Defendants failed to include a supporting declaration in compliance with CRC 3.1324(b). Plaintiff argues that Defendants knew or should have known of the affirmative defenses they are seeking to amend when they filed their Initial Answer and have offered no reasonable excuse for their failure to assert any affirmative defenses in their Initial Answer. Plaintiff also argues he will be severely prejudiced if Defendants’ Motion is granted as trial in this matter is rapidly approaching and Plaintiff will be forced to conduct additional discovery and incur additional costs. Plaintiff also contends Defendants will suffer no undue prejudice by denying their request to assert affirmative defenses. In the alternative, Plaintiff requests if the Motion is granted that Defendants’ proposed affirmative defenses numbers one through thirteen be stricken or demurred to.

Reply Arguments

Defendants argue Plaintiff’s arguments that Defendants’ Motion is defective are meritless and, even for the sake of argument if had merit, are immaterial. Defendants then repeat contentions made in its motion.

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 (or defense) 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).)¿¿

“ ‘[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.’ (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 759-761.) 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.)

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

Defendants’ answer, filed in April 2022, contains no affirmative defenses. On March 17, 2023, Defendants substituted new counsel. (Caputo Decl., ¶ 4.) Current Counsel quickly recognized the need to file an amended answer with affirmative defenses in order to present what counsel calls “essential, meritorious defenses.” (Ibid.) Counsel maintains irreparable harm will occur if an order permitting leave to amend is not granted, because Defendants will be denied the opportunity to present these meritorious affirmative defenses at trial. (Id., ¶ 5.) Moreover, Counsel argues there is no prejudice to any party, because Plaintiff has long been aware of the facts that necessitated the bringing of this request, as all facts relevant to these defenses were in Plaintiff’s possession, custody or control well before the filing of this suit. (Id. ¶ 7.) Further, Plaintiff’s counsel argues granting leave to amend will not delay trial or increase the cost of preparation or discovery expense. (Id., ¶ 8.)

Plaintiff opposes the motion, arguing (among other things) that Defendants have not filed a declaration that meets all of the requirements of Rule of Court 3.1324; that a number of the affirmative defenses in the proposed amendment contradict Defendants’ discover responses; and that, as a result, allowing the amendment would in fact require additional discovery on matters that Plaintiff believed were resolved, resulting in prejudice to Plaintiff, increased costs, and possibly a delay of trial (now set for February 7, 2024).

The Court has considered the arguments and evidence submitted by both sides and exercises its discretion to GRANT the motion and allow the amendment. The failure to include a number of fairly standard affirmative defenses in the answer was likely the result of an oversight (rather than a tactical decision) by prior counsel. There may be limited factual support for some of the affirmative defenses in the proposed amended answer, but there is a strong preference in the case law for resolution of disputes on the merits rather than as a result of a procedural default. There appears to be sufficient time to conduct whatever additional discovery may be necessary. The Court sees no unfair prejudice to Plaintiff in litigating the case on the merits and finds that granting leave to amend is in the furtherance of justice.

Having said that, the Court does have concerns about some of the affirmative defenses. Defendants are reminded that counsel who signs a pleading must have a good faith basis for the allegations contained in the document; if it turns out that one or more of the affirmative defenses does not have evidentiary support, is not warranted by existing law (or a nonfrivolous argument for the extension or modification of existing law), or is presented primarily for an improper purpose (such as to harass or cause unnecessary delay or expense), counsel may be subject to substantial sanctions. (See, e.g., Code Civ. Proc., § 128.7.)

Finally, Plaintiff argues that if the Court is otherwise inclined to permit the amendment, the Court should simultaneously rule on Plaintiff’s demur to or motion to strike portions of the amended answer. In general, however, courts 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. (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).) Therefore, the Court declines to address Plaintiff’s request to strike or demurrer at this stage in the proceedings, but the ruling is without prejudice to any demurrer or motion to strike that Plaintiff may choose to file.

Conclusion

The Court GRANTS Defendants’ motion for leave to file a first amended answer.

Defendants are granted leave to file and serve the first amended answer attached as Exhibit A to the moving papers (filed April 13, 2023) within five court days of this order.

Defendants are ordered to give notice.